THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 
LOS  ANGELES 


THE  MODERN   LEGAL  PHILOSOPHY 
SERIES 


V 
Law  as  a  Means  to  an  End 


THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Edited  by  a  Coynmitlee  of  the 
ASSOCIATION  OF   AMERICAN  LAW  SCHOOLS 


1.  THE  SCIENCE  OF  LAW.  By  KARL  GAREIS  of  the  Uni- 
versity of  Munich.  Translated  by  ALBERT  KOCOUREK  of 
Northwestern  L'niversity. 

IL  THE  WORLD'S  LEGAL  PHILOSOPHIES.  By  FRITZ 
BEROLZHELMER  of  BerUn.  Translated  bv  Mrs.  RACHEL 
SZOLD  JASTROW  of  Madison,  Wis. 

III.  COMPARATIVE      LEGAL       PHILOSOPHY.      applied      to 

Legal  Institutions.      By  LUIGI   MIR.AGLLA.  of  the  University 
of  Naples.     Translated  by  JOHN  LISLE  of  the  Philadelphia 

IV.  GENERAL    THEORY    OF    LAW.      Bv    N.    M.    KORKUNOV 

of  the  University  of  St.   Petersburg.     Translated  bv  W.  G. 
HASTINGS  of  the  University  of  Nebraska. 

\'.  LAW  AS  A  MEANS  TO  AN  END.  By  RUDOLF  VOX 
IHERING  of  the  L'niversity  of  Gottingen.  Translated  by 
ISAAC  HUSIK  of  the  University  of  Pennsylvania. 

\  I.  THE  POSITIVE  PHILOSOPHY  OF  LAW.  Bv  I.  VANNI 
of  the  L'niversity  of  Bologna.  Translated  bv  JOHN  LISLE 
of  the  Philadelphia  Bar. 

\"I1.  MODERN  FRENCH  LEGAL  PHILOSOPHY.  Bv  A. 
FOUILLlfeE,  J.  CHARMONT,  L.  DUGUIT,  and  R.  DEMO'GUE, 
of  the  L^niversities  of  Paris, '  Montpellier,  Bordeaux  and  Lille. 
Translated  by  JOSEPH  P.  CHAMBERLAIN  of  the  New  York 
Bar,  and  MRS.   ETHEL  F.  SCOTT  of  Urbana,  111. 

\TII.  THE  THEORY  OF  JUSTICE.  Bv  RUDOLF  ST.AMMLER  of 
the  University  of  Halle.  Translated  by  FREDERIC  S. 
SPIEGEL,  Judge  of  the  Superior  Court,  Cincinnati,  O. 

IX.  SELECT  ESSAYS  IN  MODERN  LEG.\L  PHILOSOPHY. 
By  Various  Authors. 

X.  THE  FORMAL  BASIS  OF  LAW.  Bv  G.  DEL  VECCHIO  of 
the  University  of  Bologna.  Translated  by  JOHN  LISLE  of 
the  Philadelphia  Bar. 

XL     THE  SCIENTIFIC   BASIS  OF  LEGAL  JUSTICE. 

XII.  THE  PHILOSOPHY  OF  LAW.  Bv  JOSEF  KOHLER  of  the 
University  of  Berlin.  Translated  by  ADALBERT  .\LBRECIIT 
of  North  Easton,  Mass. 

XIII.  PHILOSOPHY  IN  THE  DEVELOPMENT  OF  LAW\  Bv 
P.  DE  TOURTOULON  of  the  University  of  Lausanne.  Trans- 
lated by  ROBERT  L.  HENRY,  JR.,  of  the  L^niversity  of 
North  Dakota. 


Modern  Legal  Philosophy  Series:  Vol.  V 

LAW 

AS  A  MEANS  TO  AN  END 


BY 

RUDOLF  VON  IHERING 

Late  Professor  of  Law  in  the  University  of  Gottingen 
TRANSLATED  FROM  THE  GERMAN  BY 

ISAAC  HUSIK 

Lecturer  on  Philosophy  in  the  University  of  Pennsylvania 
WITH  AN  EDITORIAL  PREFACE  BY 

JOSEPH  H.  DRAKE 
Professor  of  Law  in  the  University  of  Michigan 

AND  WITH  INTRODUCTIONS  BY 

HENRY  LAMM 

Justice  of  the  Supreme  Court  of  Missouri 

AND 

W.  M.  GELDART 
Vinerian  Professor  of  English  Law  in  the  University  of  Oxford 


BOSTON 

THE  BOSTON  BOOK  COMPANY 

1913 


Copyright  1914 
By  the  boston  BOOK  COMPANY 


The  Kiverdale  Press,  Brookline,  Mass.,  U.S.A. 


EDITORIAL  COMMITTEE  OF  THE  ASSOCIATION 
OF  AMERICAN  LAW  SCHOOLS 


Joseph  H.  Drake,  Professor  of  Law,  University  of  Michigan. 
Albert   KoCOUREK,    Lecturer   on   Jurisprudence,    Northwestern 

University. 
Ernest  G.  LorENZEN,  Professor  of  Law,  University  of  Wisconsin. 
Floyd  R.  Mechem,  Professor  of  Law,  University  of  Chicago. 
ROSCOE  Pound,  Professor  of  Law,  Harvard  University. 
John  H.  WigMORE,   Chairman,   Professor  of  Law,  Northwestern 

University. 


LIST  OF  TRANSLATORS 

Adalbert  Albrecht,  North  Easton,  Mass.   (Associate  Editor  of 

the  Journal  of  Criminal  Law  and  Criminology). 
Joseph    P.    Chamberlain,    Columbia    University,    New    York, 

N.  Y. 
William  G.  Hastings,   Lincoln,  Neb.   (Dean  of   the  Faculty  of 

Law,  State  University.) 
Robert  L.  Henry,  Jr.,  Grand  Forks,  N.  D.   (Professor  of  Law  in 

the  State  University). 
Isaac   Husik,  Philadelphia,    Pa.   (Lecturer  on  Philosophy  in  the 

University  of  Pennsylvania). 
Mrs.  Rachel  Szold  Jastrow,  Madison,  Wis. 
Albert  Kocourek,  Chicago,  III.  (of  the  Editorial  Committee). 
John  Lisle,  Philadelphia,  Pa.  (of  the  Philadelphia  Bar). 
Mrs.  Ethel  Forbes  Scott,  State  University,  Urbana,  111. 
Frederic    S.  Spiegel,  Cincinnati,  Ohio  (Judge  of  the  Superior 

Court). 


1923017 


GENERAL    INTRODUCTION   TO 
THE  SERIES 

By  the  Editorial  Committee 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosopher^,  States  will  never  succeed 
in  remedying  their  shortcomings."  And  if  he  was 
loath  to  give  forth  this  view,  because,  as  he  admitted, 
it  might  "sink  him  beneath  the  waters  of  laughter  and 
ridicule,"  so  to-day  among  us  it  would  doubtless  resound 
in  folly  if  we  sought  to  apply  it  again  in  our  own  field 
of  State  life,  and  to  assert  that  philosophers  must  be- 
come lawyers  or  lawyers  philosophers,  if  our  law  is 
ever  to  be  advanced  into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to-day, 
of  some  such  transformation.  Of  course,  history  shows 
that  there  always  have  been  cycles  of  legal  progress, 
and  that  they  have  often  been  heralded  and  guided  by 
philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  how  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people 
apt  thereto.  But,  without  delaying  over  the  grounds 
for  such  speculations,  let  us  recall  that  as  shrewd  and 
good-natured  an  observer  as  DeTocqueville  saw  this 
in  us.  He  admits  that  "in  most  of  the  operations  of 
the  mind,  each  American  appeals  to  the  individual  exer- 
cise of  his  own  understanding  alone;  therefore  in  no 
country,  in  the  civilized  world  is  less  attention  paid  to 
philosophy  than  in  the  United  States."  But,  he  adds, 
"the  Americans  are  much  more  addicted  to  the  use  of 
general  ideas  than  the  English,  and  entertain  a  much 


vi  GENERAL  INTRODUCTION 

greater  relish  for  them."  And  since  philosophy  is, 
after  all,  only  the  science  of  general  ideas  —  analyzing, 
restating,  and  reconstructing  concrete  experience  — 
we  may  well  trust  that  (if  ever  we  do  go  at  it  with  a  will) 
we  shall  discover  in  ourselves  a  taste  and  high  capacity 
for  it,  and  shall  direct  our  powers  as  fruitfully  upon  law 
as  we  have  done  upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic 
learning  has  been  insular.  The  value  of  the  study  of 
comparative  law  has  only  in  recent  years  come  to  be 
recognized  by  us.  Our  juristic  methods  are  still  primi- 
tive, in  that  we  seek  to  know  only  by  our  own  experi- 
ence, and  pay  no  heed  to  the  experience  of  others. 
Our  historic  bond  with  English  law  alone,  and  our  con- 
sequent lack  of  recognition  of  the  universal  character 
of  law  as  a  generic  institution,  have  prevented  any  wide 
contact  with  foreign  literatures.  While  heedless  of 
external  help  in  the  practical  matter  of  legislation,  we 
have  been  oblivious  to  the  abstract  nature  of  law. 
Philosophy  of  law  has  been  to  us  almost  a  meaningless 
and  alien  phrase.  "All  philosophers  are  reducible  in 
the  end  to  two  classes  only:  utilitarians  and  f utilitari- 
ans," is  the  cynical  epigram  of  a  great  wit  of  modern 
fiction.^  And  no  doubt  the  philistines  of  our  profession 
would  echo  this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(whether  conscious  of  the  fact  or  not)  from  some  drift 
of  philosophic  thought.  "In  each  epoch  of  time,"  says 
M.  Leroy,  in  a  brilliant  book  of  recent  years,  "there  is 
current  a  certain  type  of  philosophic  doctrine  —  a  phil- 
osophy deep-seated  in  each  one  of  us,  and  observable 
clearly  and  consciously  in  the  utterances  of  the  day  — 
alike  in  novels,  newspapers,  and  speeches,  and  equally 

'  M.  Dumaresq,  in  Mr.  Paterson's  "The  Old  Dance  Master." 


GENERAL  INTRODUCTION  vii 

in  town  and  country,  workshop  and  counting-house." 
Without  some  fundamental  basis  of  action,  or  theory 
of  ends,  all  legislation  and  judicial  interpretation  are 
reduced  to  an  anarchy  of  uncertainty.  It  is  like  mathe- 
matics without  fundamental  definitions  and  axioms. 
Amidst  such  conditions,  no  legal  demonstration  can  be 
fixed,  even  for  a  moment.  Social  institutions,  instead 
of  being  governed  by  the  guidance  of  an  intelligent  free 
will,  are  thrown  back  to  the  blind  determinism  of  the 
forces  manifested  in  the  natural  sciences.  Even  the 
phenomenon  of  experimental  legislation,  which  is  pecu- 
liar to  Anglo-American  countries,  cannot  successfully 
ignore  the  necessity  of  having  social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910:  — 

The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy.  We  are  on  the  threshold  of  a  long  period  of  construc- 
tive readjustment  and  restatement  of  our  law  in  almost  every  depart- 
ment. We  come  to  the  task,  as  a  profession,  almost  wholly  untrained 
in  the  technic  of  legal  analysis  and  legal  science  in  general.  Neither 
we.  nor  any  community,  could  expect  anything  but  crude  results 
without  thorough  preparation.  Many  teachers,  and  scores  of 
students  and  practitioners,  must  first  have  become  thoroughly 
familiar  with  the  world's  methods  of  juristic  thought.  As  a  first 
preparation  for  the  coming  years  of  that  kind  of  activity,  it  is  the 
part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modern  thinkers  abroad  —  to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state 
of  learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  ( Kuhn  v.  Fair- 


viii  GENERAL  INTRODUCTION 

mont  Coal  Co.)  turned  upon  the  respective  conceptions  of  "law" 
in  the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  supplied  dire(5t 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting:  — 

That  a  committee  of  five  be  appointed  by  the  president,  to  arrange 
for  the  translation  and  publication  of  a  series  of  continental  master- 
works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where.    The  present  series  is  the  result  of  these  labors. 

In  the  selection  of  this  series,  the  committee's  pur- 
pose has  been,  not  so  much  to  cover  the  whole  field  of 
modern  philosophy  of  law,  as  to  exhibit  faithfully  and 
fairly  all  the  modern  viewpoints  of  any  present  impor- 
tance. The  older  foundation-works  of  two  generations 
ago  are,  with  some  exceptions,  already  accessible  in 
English  translation.  But  they  have  been  long  sup- 
planted by  the  products  of  newer  schools  of  thought 
which  are  offered  in  this  series  in  their  latest  and  most 
representative  form.  It  is  believed  that  the  complete 
series  will  represent  in  compact  form  a  collection  of 
materials  whose  equal  cannot  be  found  at  this  time  in 
any  single  foreign  literature. 

The  committee  has  not  sought  to  offer  the  final 
solution  of  any  philosophical  or  juristic  problems;  nor 
to  follow  any  preference  for  any  particular  theory  or 
school  of  thought.  Its  chief  purpose  has  been  to  present 
to  English  readers  the  most  representative  views  of  the 
most  modern  writers  in  jurisprudence  and  philosophy 
of  law.  The  series  shows  a  wide  geographical  represen- 
tation; but  the  selection  has  not  been  centered  on  the 


GENERAL  INTRODUCTION  ix 

notion  of  giving  equal  recognition  to  all  countries, 
primarily,  the  desire  has  been  to  represent  the  various 
schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at 
the  same  time.  Germany,  for  example,  is  represented 
in  modern  thought  by  a  preponderant  metaphysical 
influence.  Italy  is  primarily  positivist,  with  subordinate 
German  and  English  influences.  France  in  its  modern 
standpoint  is  largely  sociological,  while  making  an  effort 
to  assimilate  English  ideas  and  customs  in  its  theories 
of  legislation  and  the  administration  of  justice.  Spain, 
Austria,  Switzerland,  Hungary,  are  represented  in  the 
Introductions  and  the  shorter  essays;  but  no  country 
other  than  Germany,  Italy,  and  France  is  typical  of  any 
important  theory  requiring  additions  to  the  scope  of 
the  series. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past 
to  present,  was  regarded  by  the  committee  as  unneces- 
sary. The  volumes  of  Dr.  Berolzheimer  and  Professor 
Miraglia  amply  serve  this  purpose;  and  the  introductory 
chapter  of  the  latter  volume  provides  a  short  summary 
of  the  history  of  general  philosophy,  rapidly  placing 
the  reader  in  touch  with  the  various  schools  and  their 
standpoints.  The  series  has  been  so  arranged  (in  the 
numbered  list  fronting  the  title  page)  as  to  indicate  that 
order  of  perusal  which  will  be  most  suitable  for  those  who 
desire  to  master  the  field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledg- 
ing the  important  part  rendered  in  the  consummation 
of  this  project,  by  the  publisher,  the  authors,  and  the 
translators.  Without  them  this  series  manifestly  would 
have  been  impossible. 


X  GENERAL  INTRODUCTION 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness 
to  Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his 
ample  provision  of  materials  for  legal  science  ^in  the 
Gary  Library  of  Continental  Law  (in  Northwestern 
University).  In  the  researches  of  preparation  for  this 
Series,  those  materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  have  shown 
a  friendly  interest  in  promoting  our  aims.  The  com- 
mittee would  be  assuming  too  much  to  thank  these 
learned  writers  on  its  own  behalf,  since  the  debt  is  one 
that  we  all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar 
way  be  attributable  to  the  scholarly  labors  of  the  several 
translators. 

The  committee  finds  special  satisfaction  in  having 
been  able  to  assemble  in  a  common  purpose  such  an  array 
of  talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  to  this  unified  effort  has  been  amply  recom- 
pensed if  this  series  will  measurably  help  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice. 


CONTENTS 


Page. 

General  Introduction  to  the  Series,  by  The  Committee     v 
Editorial  Preface  to  this  Volume,  by  Joseph  H.  Drake    xv 

Introduction  by  Henry  Lamm     xxv 

Introduction  by  W.  M.  Geldart xxxv 

Author's  Preface    liii 

PART  I 

The  Concept  of  Purpose 

CHAPTER  I 

The  Law  of  Purpose    1 

§  L  Cause  and  Purpose.  §  2.  Problem  of  the  Will  in  the 
Living  Being.  §3.  The  Animal;  Psychological  Lever  of  its  Will; 
Influence  of  Experience.  §  4.  The  Concept  of  Life.  §  5.  The 
Voluntary  Process  in  Man:  I.  Inner  Stage,  1.  Purpose;  2.  Rela- 
tion of  Purpose  to  Action;  3.  The  Law  of  Purpose;  4.  Purpose  in 
the  Form  of  Reason;  Habitual  Action.  II.  External  Stage  in  the 
Voluntary  Process;  The  Law  of  Causalitiy. 

CHAPTER   II 

The  Concept  of  Purpose  in  Animals  as  Point  of  De- 
parture FOR  the  Problem  of  Purpose  in  Man 19 

§  1.     The  Mechanism  of  the  Animal  Will.     §  2.     Self-relation  in 

Purpose.      §  3.     Realization  of  the  Conditions  of  Existence  through 

the  Will. 

CHAPTER   III 

Egoism  in  the  Service  of  Altruistic  Purposes  25 

§  I.  Coincidence  of  the  Purposes  of  the  Ethical  World-Order. 
§  2.  Nature.  §  3.  Commerce.  §  4.  Organized  and  Non- 
Organized  Purposes.     §  5.     The  State  and  the  Law. 


xii  CONTENTS 

CHAPTER   IV 

The  Problem  of  Self-Denial 36 

§  1.  Impossibility  of  Action  without  Interest.  §  2.  Interest  in 
Self-denial.  §  3.  Contrast  of  Self-regarding  and  Non-Self-regard- 
ing  Action.  §  4.  Self-denial  and  Unselfishness,  §  5.  Plan  of 
Investigation:  System  of  Human  Purposes.  §6.  The  Different 
Species  of  Self-assertion. 

CHAPTER  V 

The  Purposes  of  Egoistical  Self-Assertion    47 

§  1.  Physical  Self-assertion.  §  2.  Economic  Self-assertion. 
§  3.  Problem  of  Property  —  Juristic  Form.  §  4.  Concept  of 
Right  and  Duty.  §  5.  Work.  §  6.  Exchange.  §  7.  Contract 
—  The  Law.     §  8.     Juristic  Self-assertion. 

CHAPTER  VI 

Life  through  and  for  Others,  or  Society 59 

§  1.  Social  Form  of  Human  Existence.  §  2.  Unintentional  In- 
fluence of  One  upon  the  Other.  §  3.  Continuation  of  Influence 
beyond  Life.  §4.  Right  of  Inheritance  in  its  Relations  to  the 
History  of  Culture.  §  5.  Social  Life  as  a  Law  of  Culture.  §  6. 
Concept  of  Society.  §  7.  Difference  between  Society  and  State. 
5  8.     Problem  of  Social  Movement. 

CHAPTER  VII 
Social  Mechanics,  or  the  Levers  of  Social   Move- 
ment         71 

I.  Egoistic  Levers — Reward 
Social  Mechanics  —  Commerce.  §1.  Insufficiency  of  Benevo- 
lence for  Purposes  of  Commerce  (Liberal  Contracts  and  Business 
Contracts;  Roman  System  of  Commerce  in  Earlier  and  Later 
Times)  — All  Commerce  Founded  upon  Egoism.  §2.  Principle  of 
Compensation  —  The  Two  Principal  Forms  of  Commerce.  The 
First:  Exchange  (Difference  of  Purpose  on  Both  Sides).  Real  Per- 
formance and  Consideration.  §  3.  Progress  from  Real  Considera- 
tion to  Reward.  §  4.  Promotion  of  Reward  to  Equivalent.  §  5. 
Organization  of  Work  in  the  Form  of  a  Vocation.  §  6.  Credit. 
§  7.  Ideal  Reward  and  its  Combination  with  Economic  Reward 
(^Salary;  Honorarium;  Maintenance  in  Contrast  with  Reward). 
The   Second  Principal  Form  of  Commerce:   Partnership   (Identity 


CONTENTS  xiii 

of  Purpose  on  Both  Sides).  §  8.  Association;  Public  Spirit;  De- 
fects of  the  Second  Principal  Form.  The  Bright  Sides  of  Com- 
merce.    Ethical  Significance  of  Commerce. 

CHAPTER  VIII 
Social   Mechanics,  or  the  Levers  of  Social  Move- 
ment        176 

2.  Egoistic  Levers — Coercion 
§  L  Form  of  Coercion  in  Animals.  §  2.  Man;  Intelligence 
Added  to  Force  (Slavery,  Peace,  Law).  —  The  Postulate  of  Force 
in  the  Various  Purposes  of  the  Individual  ( §  3.  Person,  Property. 
§4.  Family;  §5.  Contract;  Binding  Force  of  Contracts;  Their 
Form  in  Roman  Law).  —  Social  Organization  of  Force  (§6.  Part- 
nership; §  7.  Society;  §  8.  State).  §  9.  The  Force  of  the  State. 
§  10.  Law.  The  Elements  of  the  Concept  of  Law:  Compulsion. 
§  11.  Norm,  Content  (§12.  Conditions  of  Social  Life).  §§  13,  14. 
Position  of  the  Individual  in  Law.  §  15.  Solidarity  of  the  Inter- 
ests of  the  Individual  with  those  of  the  State. 

APPENDIX 
Critical  Surveys  of  von  Ihering's  Theories 

I.  By  Adolf  Merkel 427 

II.  By  L.  Tanon     455 


EDITORIAL  PREFACE  TO  THIS  VOLUME 
By  Joseph   H.   Drake 


I.  The  Author  AND  The  Translator.  Rudolf  J. 
von  Ihering  was  born  at  Aurich,  in  East  Friesland,  on 
August  22,  1818.  He  was  descended  from  a  long  line 
of  lawyers  and  administrators.  Following  the  family 
tradition  he  studied  law,  hearing  lectures  at  Heidel- 
berg, Munich,  Gottingen  and  Berlin.  He  received  his 
doctor  degree  from  the  University  of  Berlin  in  1842, 
with  a  dissertation  entitled  "De  Hereditate  Possi- 
dente,"  In  the  following  year  he  began  work  as  an 
instructor  in  law.  He  became  professor  of  law  at  Basel 
in  1845,  was  called  to  Rostock  in  1846,  to  Kiel  in  1849, 
to  Giessen  in  1852,  and  to  Vienna  in  1868.  In  1871  he 
was  recalled  from  Austria  to  the  newly  established  Ger- 
man university  at  Strassburg.  After  one  year's  resi- 
dence here  he  received  a  call  to  Gottingen,  where  he 
continued  to  teach  until  his  death,  on  September  17, 
1892,  declining  calls  to  Leipsic  and  Heidelberg.  During 
his  stay  at  Vienna  he  received  his  title  of  nobility  from 
the  Emperor  of  Austria. 

The  first  volume  of  "Der  Zweck  im  Recht"  was  pub- 
lished in  1877;  the  second  volume,  not  until  1883.  The 
English  work  here  presented  is  a  translation  of  the  first 
volume  of  the  4th  German  edition,  published  by  Breit- 
kopf  and  Hartel  (Leipsic,  1903).  The  other  published 
works  of  the  author  are:  "Abhandlungen  aus  dem 
romischen  Rechts"  (Leipsic,  1844);  "Zivilrechtsfalle 
ohne  Entscheidung"  (Leipsic,  1847;  11th  edition,  Jena, 
1909);  "Der  Geist  des  romischen  Rechts  auf  den  ver- 
schiedenen  Stufen  seiner  Entwickelung"  (4  vols.,  Leip- 
sic,  1852-1865;    5th  and  6th  editions,   Leipsic,    1906- 


?cvi  EDITORIAL  PREFACE 

07) ;  "Ueber  den  Grund  des  Besitzschutzes"  (Jena,  1868; 
2nd  edition,  Jena,  1869);  "Die  Jurisprudenz  des  tag- 
lichen  Lebens"  (Jena,  1870;  13th  edition,  Jena,  1908); 
"Der  Kampf  urns  Recht"  (Regensburg,  1872;  '7th  edi- 
tion, Vienna,  1910);  "Vermischten  Schriften  juristischen 
Inhalts"  (1879) ;  "Gesammelte  Aufsatze"  (3  vols. ,  1881) 
"Das  Trinkgeld"  (Brunswick,  1882;  3rd  edition,  i889) 
"Scherz  und  Ernst  in  der  Jurisprudence"  (Leipsic,  1885 
10th  edition,  Leipsic,  1909);  "Der  Besitzwille ;  Zug- 
leich  eine  Kritik  der  herrschenden  juristischen  Methode" 
(Jena,  1889).  After  his  death  there  appeared  "Die 
Vorgeschichte  der  Indo-Europaer"  (Leipsic,  1894)  and 
"Die  Entwickelungsgeschichte  des  romischen  Rechts" 
(Leipsic,  1894).  In  1852,  he  established  along  with 
Gerber  the  "Jahrbiicher  fiir  die  Dogmatik,"  which 
immediately  became  one  of  the  most  important  legal 
periodicals  of  Germany,  a  position  due  in  great  part  to 
Ihering's  contributions  to  it. 

A  sketch  of  his  life  by  Mitteis  may  be  found  in  "AU- 
gemeine  Deutsche  Biographic,"  Vol.  L.  A  very  inter- 
esting and  sympathetic  account  of  him  as  a  scholar, 
teacher  and  man  was  published  by  Munroe  Smith  in 
the  articles  entitled,  "Four  German  Jurists"  ("Political 
Science  Quarteriy,"  Vol.  10,  pp.  664-692  and  Vol.  11, 
pp.  278-309).  A  critical  appreciation  of  him  by  his  pupil 
and  life-long  friend,  Adolf  Merkel,  appeared  in  the 
"Jahrbiicher  fiir  die  Dogmatik"  shortly  after  his  death. 
This  has  been  translated  and  published  in  this  volume 
in  Appendix  I. 

"Der  Kampf  ums  Recht"  has  been  translated  into  Eng- 
lish, under  the  title  of  "The  Struggle  for  Law,"  by 
John  J.  Lalor  of  the  Chicago  Bar.  Chicago:  Callaghan 
and  Company,  1879.  "Die  Jurisprudenz  des  taglichen 
Lebens"  has  been  translated  by  Henry  Goudy,  D.  C.  L., 
Regius  Professor  of  Civil  Law  in  the  University  of  Ox- 


EDITORIAL  PREFACE  xvii 

ford,  under  the  title  of  "Law  in  Daily  Life."  Oxford: 
Clarendon  Press,  1904. 

The  translator  of  the  present  volume,  Dr.  Isaac 
Husik,  is  a  Ph.D.  of  the  University  of  Pennsylvania. 
He  is  Instructor  in  Hebrew,  Gratz  College,  Phila- 
delphia and  a  Lecturer  on  Philosophy  in  the  University 
of  Pennsylvania,  a  member  of  the  American  Philosophical 
Association,  of  the  American  Association  for  the  Advance- 
ment of  Science  and  of  the  Third  International  Congress 
of  Philosophy,  held  at  Heidelberg,  September,  1908. 
He  has  written  articles  on  the  Aristotelian  philosophy 
and  other  topics,  and  is  well  known  as  an  authority  in 
mediaeval  philosophy. 

II.  Bentham  and  Ihering.  To  American  lawyers 
Ihering  is  known  as  the  German  Bentham.  The  simi- 
larities between  them  are  due  rather  to  the  facts  that 
they  thought  along  the  same  lines,  that  each  belonged 
to  a  transition  period  in  the  legal  thinking  of  his  own 
country,  and  that  each  suggested  similar  correctives  for 
the  legal  fallacies  of  his  time  and  his  environment,  than 
to  any  direct  imitation  of  the  English  Utilitarian  by  the 
German  jurist.  In  the  first  volume  of  "Der  Zweck  im 
Recht"  it  will  be  noted  that  Ihering  makes  but  little 
use  of  Bentham's  ideas.  In  the  second  vdlume,  published 
six  years  after  the  first,  when  he  comes  to  a  presentation 
of  his  own  ethical  theory,  he  cites  Bentham  as  a  com- 
mendable type  of  the  earlier  Utilitarians.  He  credits 
Bentham  (Vol.  II,  p.  133)  with  a  very  important  con- 
tribution to  ethical  theory.  "Those  concepts  which 
appear  but  dimly  in  Leibnitz  (*omne  honestum  publice 
utile,  omne  turpe  publice  damnosum'),  which  Kant,  too, 
had  before  him  in  his  'supremely  good'  ('Weltbesten'), 
Bentham  first  recognized  with  perfect  clearness,  and, 
under  the  very  appropriate  name  of  Utilitarianism 
developed  into  an  independent  ethical  system."     But 


xviii  EDITORIAL  PREFACE 

it  is  evident  that  Ihering  uses  Bentham's  fundamental 
concept  merely  as  a  starting  point  for  his  own  philoso- 
phy. Taken  as  a  point  of  departure,  however,  it  is,  as 
Ihering  himself  says,  of  the  greatest  importance. 

Bentham's  basic  maxim  was  that  the  test  of  right  and 
wrong  is  the  greatest  happiness  of  the  greatest  number. 
He  thought  that  in  this  he  had  discovered  a  principle  of 
ethical  and  legal  calculus  by  the  use  of  which  ethical 
norms  and  legal  rules  could  be  worked  out  which  would 
have  absolute  validity.  "Nature,"  says  Bentham,  "has 
placed  mankind  under  the  governance  of  two  sovereign 
masters,  pain  and  pleasure.  The  principle  of  utility 
recognizes  this  subjection  and  assumes  it  as  the  founda- 
tion of  that  system.  By  the  principle  of  utility  is  meant 
that  principle  which  approves  or  disapproves  of  every 
action  whatsoever,  according  to  the  tendency  which  it 
appears  to  have  to  augment  or  diminish  the  happiness  of 
the  party  whose  interest  is  in  question."  This  doctrine 
is  of  course  not  new,  but  in  Bentham's  hands  it  was 
turned  from  a  philosophic  doctrine  into  a  political  device 
for  the  legislative  reform  of  an  effete  legal  system.  It 
commends  itself  for  its  simplicity.  Find  out  what  rules 
are  adapted  to  bring  about  the  greatest  happiness  for 
the  greatest  number,  adopt  these  rules  as  laws  by  the 
sovereign  power  of  the  state,  and  a  political  and  legal 
millennium  is  assured. 

Though  Ihering  cites  Bentham's  basic  concept  with 
approval,  he  also  gives  in  his  criticism  of  him  the 
distinction  between  his  own  social  utilitarianism  and 
Bentham's  purely  subjective  view.  Utility  was  with  Ben- 
tham that  which  was  useful  to  the  individual,  and  this 
"subjectively  useful  is  wrongly  exalted  as  the  measure 
and  criterion  of  the  objectively  and  socially  useful." 
The  good  of  the  individual  is  never  an  end  in  itself  but 
only  a  means  for  accomplishing  a  social  purpose.     An 


EDITORIAL  PREFACE  xix 

individual  may  act  for  his  own  happiness,  but  this  is 
to  be  done  not  in  his  own  interest  but  in  the  interest  of 
society,  and  this  relation  of  the  individual  to  society 
cannot  be  determined  by  "any  abstract  theoretical 
formula,  but  by  practical  considerations."  Bentham's 
theory  of  law  is  a  purely  individualistic  one.  The  law  is 
to  be  invoked  as  a  means  of  securing  and  protecting  the 
welfare  of  the  individual.  This  theory  is  more  fully 
elaborated  by  Mill  and  the  later  English  Utilitarians. 
With  Ihering,  on  the  other  hand,  law  is  a  social  force, 
created  by  society,  and  to  be  used  for  the  benefit  of  the 
individual  interest  only  in  so  far  as  the  interest  of  the 
individual  coincides  with  the  interest  of  society. 

Bentham  and  Ihering  are  alike  in  espousing  an  impera- 
tive theory  of  law,  and  both  are  brought  to  this  not  only 
by  natural  bent,  but  also  even  more  by  their  reaction 
against  the  juristic  thinking  of  their  times.  The  earliest 
incentive  to  Bentham's  juristic  efforts  came  by  way  of 
repulsion  to  Blackstone.  The  doctrine  of  the  original 
contract  had  been  appealed  to  by  Blackstone  to  explain 
the  origin  of  society  and  law,  and,  although  he  disavowed 
definite  belief  in  it,  he  had  not  shown  just  how  much  he 
really  retained.  He  also  speaks  vaguely  of  a  "natural 
society"  that  apparently  grows  out  of  the  expanded 
family,  but  closes  this  paragraph  by  saying  that  the 
"original  contract  ...  in  nature  and  reason  must 
always  be  understood  and  implied  in  the  very  act  of 
associating  together."  Bentham  pounced  on  this  un- 
fortunate wabble  and,  after  rending  in  tatters  Black- 
stone's  verbose  contradictions,  substitutes  for  them  the 
simple  principle  of  utility,  which  furnishes  the  only 
clew  to  guide  one  through  this  maze.  Blackstone's 
definition  of  law  was  equally  faulty.  He  puts  in  close 
juxtaposition  a  traditional  and  an  imperative  theory  of 
law.     Bentham  boldly  threw  aside  the  traditional  ele- 


XX  EDITORIAL  PREFACE 

nient  in  law,  poured  out  the  vials  of  his  wrath  on  the 
Blackstonian  political  optimism  that  lauded  the  system 
of  common  law  as  the  most  perfect  conceivable  one,  and 
brought  our  whole  system  of  jurisprudence  to  the  test 
of  expediency,  insisting  that  all  its  provisions  should  be 
brought  by  legislation  to  conform  to  the  wants  of  men 
and  to  the  promotion  of  the  greatest  happiness. 

As  Blackstone  is  Bentham's  bete  noire,  so  is  Puchta 
that  of  Ihering.  Savigny,  the  greatest  German  jurist 
of  the  first  half  of  the  nineteenth  century,  reacting  against 
the  natural  law  concepts  of  the  preceding  generation, 
had  set  forth  with  wonderful  scholarly  acumen  and 
broad  historical  grasp  the  idea  that  law  is,  like  lan- 
guage, an  historical  product  of  the  life  of  a  people.  This 
seems  to  carry  with  it  by  implication  a  sort  of  legal 
fatalism.  The  jurist  can  have  but  little  influence  in 
determining  how  the  law  is  to  develop.  His  activity  as 
an  historian  is  limited  to  a  study  of  what  is  and  has 
been  in  legal  phenomena  and  his  juristic  philosophy  to 
a  generalization  of  the  principles  which  explain  these 
facts.  Savigny,  as  a  practical  jurist  and  historian  of  the 
law,  was  never  carried  off  his  feet  into  the  whirlpool 
of  juristic  metaphysical  speculation;  but  Puchta,  his 
contemporary,  who  was  more  philosopher  than  jurist, 
indulged  to  the  full  the  Teutonic  tendency  toward 
abstract  generalization.  Ihering's  expressions  of  dis- 
gust with  these  philosophic  vagaries,  as  uttered  by  him- 
self in  the  latter  part  of  his  "Scherz  und  Ernst"  and  in 
the  preface  to  "Der  Besitzwille,"  remind  one  of  the 
opening  paragraphs  of  Bentham's  "Fragment  on  Gov- 
ernment," with  his  like  condemnation  of  Blackstone. 
Ihering  brought  "the  jurisprudence  in  the  air"  down  to 
"a.  jurisprudence  of  realities."  Denying  that  law  was 
only  a  growth  which  men  could  simply  observe  and 
from  the  observation  work  out  the  principles  which  they 


EDITORIAL  PREFACE  xxi 

saw  developed,  he  asserted  that  law  was  also,  and  pre- 
dominantly, the  realization  of  a  purpose,  and  that  this 
purpose  had  been  and  could  be  attained  only  by  struggle. 
Furthermore,  this  purpose  was  a  social  purpose  and  had 
for  its  aim  the  securing  of  the  interests  of  the  individual 
only  so  far  as  society  recognized  them. 

Neither  Bentham  nor  Ihering  was  a  practical  lawyer. 
To  neither  will  the  thoroughgoing  metaphysician  allow 
the  title  of  philosopher,  but  to  each  is  unanimously  con- 
ceded the  name  of  a  great  legal  genius.  Bentham  brings 
all  legal  facts  to  a  focus  about  his  central  idea  that  legis- 
lation must  be  shaped  with  reference  to  the  greatest 
good  for  the  greatest  number.  Ihering  makes  much  of 
the  proposition  that  the  sense  of  right  and  justice  must 
constantly  affect  the  social  purpose  of  law,  and  that  our 
legal  system  must  constantly  be  reshaped  to  allow  the 
exercise  of  this  purpose.  The  end  and  aim  of  Bentham 's 
life  work  was  codification  and,  although  he  did  not  live 
to  see  the  Reform  Bill  of  1832,  it  is  generally  admitted 
that  his  life-long  insistence  on  the  simplicity,  possi- 
bility and  supreme  desirability  of  law  reform  was  one  of 
the  principal  instrumentalities  in  starting  the  making 
over  of  law  by  legislative  enactment,  which  has  been  the 
most  characteristic  feature  of  legal  history  of  England 
during  the  century  that  has  elapsed  since  his  death. 
The  codifying  activity  of  Ihering  was  hardly  more  tlian 
an  episode  in  his  very  active  career.  As  a  conclusion  of 
his  "Possessory  Intention,"  he  gives  us  some  criticism 
of  the  first  draft  of  the  German  Civil  Code,  and  in  the 
final  draft  of  that  wonderful  instrument  a  few  provisions 
are  conceded  to  have  been  afifected  by  his  doctrines,  but 
his  actual  part  in  shaping  the  form  of  the  great  German 
codification  is  not  to  be  compared  with  that  exerted  by 
many  of  his  contemporaries. 

III.  Ihering's  Message.  Ihering's  criticism  of 
Puchta,  of  Savigny  and  of  the  Roman  jurist,  Paulus, — 


xxii  EDITORIAL  PREFACE 

whom  he  laughingly  insults  by  calling  him  the  Puchta  of 
the  classical  world  —  is  indicative  of  his  revolt  against 
the  juristic  tendencies  in  Germany  in  the  middle  of  the 
nineteenth  century,  tendencies  which  are  apparentl>' 
still  operative  in  America  in  this  first  quarter  of  the 
twentieth  century.  The  jurist  Paulus,  in  his  endeavor 
to  systematize  the  law  of  possession,  had  assigned  as 
the  reason  for  the  fact  of  possession,  the  intention  of  the 
holder  to  possess.  He  gave  this  as  the  logical  reason  for 
the  existence  of  certain  anomalous  rules  of  possession 
existing  in  the  Roman  law  of  the  classical  period.  Ihering 
boldly  announced  that  these  rules  had  no  logical  explana- 
tion, but  had  arisen  simply  because  of  accidents  in  the 
historical  development  of  the  doctrine  of  possession 
in  Roman  law.  Savigny  had  devoted  his  life  to  the  care- 
ful working  out  of  certain  legal  principles  which  in  the 
course  of  history  had  been  developed  in  the  Roman 
law.  Puchta  had  attempted  to  fashion  these  principles 
into  a  philosophic  system  and  to  crystallize  them  in  a 
body  of  dogmatic  juristic  doctrine  possessing  a  philo- 
sophic validity. 

In  our  Anglo-American  system  of  jurisprudence,  Coke, 
in  the  earlier  period,  and  Blackstone,  in  the  later, 
have  played  the  part  of  a  Paulus  in  their  giving  of  naive 
and  superficial  reasons  for  the  legal  anomalies  of  our 
system.  The  careful  investigation  of  the  historical 
sources  of  our  law  and  the  presentation  of  the  results 
in  case-books  and  treatises,  which  have  absorbed  the 
energies  of  our  best  English  and  American  legal  scholars 
during  the  life  of  the  past  generation,  have  performed 
for  our  law  a  service  comparable  to  that  rendered  to 
Roman  law  by  the  great  Savigny ;  but  we  find  among 
our  own  historical  scholars  a  tendency  similar  to  that 
found  among  the  followers  of  Savigny,  to  rest  content 
with  this  historical  achievement  and  to  ignore  or  even 


EDITORIAL  PREFACE  xxiii 

to  ridicule  the  possibilities  of  directing  by  philosophic 
prevision  the  development  of  law  in  the  future.  As  an 
example  of  this  somewhat  contemptuous  attitude  toward 
law  as  it  ought  to  be,  note  the  disparaging  reference  to 
the  "philosophic  jargon  of  the  German"  made  by  one 
of  our  most  distinguished  representatives  of  the  English 
historical  school  of  jurists.  On  the  other  hand,  we  find 
many  a  Puchta  among  our  American  jurists,  both  on 
and  off  the  bench,  who  apply  the  principles  that  have 
been  worked  out  in  the  development  of  our  Common 
Law  as  though  they  were  "^  priori"  mathematical  axioms 
and  not  "k  posteriori"  working  formulae,  which  have  to 
be  constantly  reshaped  to  adapt  them  to  the  ever  chang- 
ing requirements  of  a  developing  society. 

American  juristic  thinking  at  the  present  time  needs 
a  von  Ihering.  Our  jurists,  our  legislators  and  our 
courts,  both  bench  and  bar,  are  still  holding  fast  to  an 
historical  "Naturrecht"  built  up  on  the  precedents  of 
the  Common  Law,  which  has  many  analogies  to  the  type 
of  juristic  thinking  in  vogue  in  Germany  during  the  first 
half  of  the  nineteenth  century.  All  of  our  lawyers, 
judges  and  legislators  who  are  trained  in  the  traditions 
of  the  Common  Law  hold  with  characteristic  and  com- 
mendable professional  conservatism  to  the  good  that  is 
and  has  been  in  our  legal  system,  insisting,  too,  upon 
the  prime  virtue  of  a  system  of  law  that  is  certain,  but 
apparently  forgetting  that  law  is  not  an  end  in  itself 
and  as  such  to  be  brought  to  a  state  of  formal  and  static 
perfection,  but  that  the  end  is  the  good  of  society.  The 
public  is  crying  out  against  our  crystallized  and  inelastic 
theory  and  practice  of  law.  The  proper  application  of 
the  idea  of  law  as  purpose  would,  in  many  cases,  loosen 
our  legal  shackles  and  open  the  way  out  of  our  legal 
difficulties. 

This  idea  of  Ihering  may  not  be  the  last  word  on  the 
philosophy  of  law.     Possibly  the  criticism  made  by  some 


xxiv  EDITORIAL  PREFACE 

of  his  German  successors  that  it  is  not  a  philosophy  at 
all  may  be  well  founded.  But  it  certainly  is  an  uplifting 
and  inspiring  idea  and  is  not  too  far  ahead  of  our  own 
prevalent  juristic  thinking  to  make  the  adoption  of  it  a 
practical  impossibility  for  us.  In  those  very  difficult 
cases  where  our  judges  are  confronted  with  the  task  of 
extending  a  principle  of  law  to  meet  a  new  set  of  facts 
which  call  loudly  for  a  remedy,  if  the  courts  had  the  idea 
that  the  purpose  of  law  was  to  satisfy  properly  our  chang- 
ing social  demands,  we  should  have  fewer  reactionary 
decisions  that  have  caused  so  much  popular  discontent 
with  the  law  - —  decisions  which  are  justified  by  the  courts 
handing  them  down,  by  the  arguments  that  there  are 
"no  precedents"  in  the  Common  Law  for  them,  or  that 
to  extend  the  principle  will  "open  the  flood-gates  of  liti- 
gation." The  days  of  "  laissez  faire"  in  legal  matters 
have  gone  by  in  America  as  well  as  in  Germany.  We, 
too,  must  recognize  that  our  historical  Common  Law  is 
not  sufficient  for  the  demands  of  present  day  life  unless, 
by  our  struggles  with  a  purpose,  we  can  add  to  the  law 
as  it  is  and  has  been,  some  of  the  principles  of  the  law  as  it 
ought  to  be,  in  order  to  satisfy  our  growing  social  needs. 


INTRODUCTION  TO  THIS  VOLUME 
By  Henry  Lamm^ 


The  Chairman  of  the  Committee  (may  his  tribe  increase!) 
because  I  happen  to  Hke  him,  persuaded  me  into  writ- 
ing an  "Introduction"  to  Law  as  a  Means  to  an  End. 
What  a  judge  on  the  bench,  hard  beset  by  his  tasks  and 
busy  with  Doe  v.  Roe  and  Smith  v.  Jones,  feeHng  for 
justice  if  perchance  he  can  find  it,  has  to  do  with  intro- 
ducing to  critical  readers  a  book  on  the  philosophy  of 
the  law,  is  an  untold  story  all  to  itself.  That  he  is 
likely  to  make  a  faux  pas  of  so  elegant  a  function  in 
politeness  as  an  Introduction,  will  appear  doubtless 
in  good  time  and  due  course,  if  you  have  patience, 
O  gentle  (but  quizzical)  reader. 

Those  who  amuse  themselves  analyzing  things,  who 
know  what's  what  (which  is  said  by  one  shrewd  observer 
to  be  "as  high  as  metaphysic  wit  can  fly"),  will  be  able 
without  my  help  to  divide  this  introduction  into: 
firstly,  a  word  about  von  Ihering,  the  author;  secondly, 
a  word  or  two  about  his  book  (and  herein  of  philosophy 
in  general) ;  and,  thirdly,  into  sundry  and  divers  other 
heads  and  subheads  at  will. 

A  word  more  in  your  ear,  reader.  This  book,  taken 
up  by  me  with  diffidence  and  hesitation,  was  read  under 
a  glow  of  fascination  (as  it  will  by  you),  and  laid  down 
with  regret,  because  the  man  had  evidently  something 
more  worth  while  to  say.  A  book  dealing  with  man 
(which  includes  what  lago  called  the  immortal  part  of 
him,  viz.,  his  mind)  as  seen  through  his  laws,  must  deal 
in  speculative  probabilities.  Hence  you  need  not  believe 
all  you  read.    You  may  have  doubts  yourself;  but  you 

'  Chief  Justice  of  the  Supreme  Court  of  Missouri. 


xxxi  INTRODUCTION 

require  that  the  writer  believes  all  he  writes  and  makes 
you  believe  that  he  does,  or  you  will  have  none  of  it. 
You  wag  your  head  and  shoot  out  your  tongue  at  any 
other  kind  of  a  book  on  so  serious  a  theme.  Now,  von 
Ihering  believes  in  himself  and  his  theories  with  all  his 
might  and  main,  and  you  will  like  that.  He  says  him- 
self: "The  gift  of  a  cold  hand  is  compatible  with  an 
ice  cold  heart.  .  .  .  Only  the  gift  of  a  warm  hand  feels 
warm."    Von  Ihering's  hand  was  warm  for  mankind. 

Rudolph  von  Ihering,  the  son  of  a  practising  lawyer 
and  thus  bom  into  the  law  (a  chip  off  the  old  block), 
was  college  bred  at  Heidelberg,  Gottingen  and  Berlin, 
graduating  a  doctor  juris.  Living  up  to  the  title  of 
"doctor,"  teaching  became  his  life  work.  He  lectured 
on  Roman  law  at  Berlin,  Basel,  Rostock,  Kiel,  Giessen, 
Vienna,  and  then  at  Gottingen,  dying  there  in  1892, 
full  of  years  (the  rise  of  three  score  and  ten)  and  of 
honors  many.  When  he  became  old,  he  could  "read 
his  history"  in  the  eyes  of  those  who  knew  him. 

"In  appearance  he  was  of  middle  stature,  his  face 
clean-shaven  and  of  classical  mould"  (as  became  a 
Roman  scholar),  "lit  up  with  vivacity  and  beaming  with 
good  nature."  As  those  who  knew  him  testify,  so  those 
who  read  after  him  must  admit,  that  he  had  read  deeply 
with  a  keen  and  appreciative  eye  as  a  student  and  lover 
of  humanity;  that  his  thinking,  always  clean  and  original, 
was  sometimes  daring;  that  his  theories,  formulated 
with  precision  and  lucidity,  were  asserted  with  boldness 
and  defended  with  a  charm  of  wholesome  and  homely  wit, 
a  chaste  and  animated  vigor  of  style  and  an  uncommon 
brilliancy  of  reasoning.  If  he  is  not  a  god,  he  is  at  least 
a  half-god  (and  a  very  good  one  at  that)  in  philosophy. 

To  bring  those  of  us  who  read  (and  think)  only  in 
the  English  tongue  in  contact  with  this  elegant  trans- 
lation is  permanently  to  widen  one's  horizon  and  open 


INTRODUCTION  xxvii 

a  new  window  through  which  the  mind's  eye,  now  and 
onward,  may  look  down  an  interesting  vista.  If  he  who 
makes  two  ears  of  corn  or  two  blades  of  grass  to  grow 
where  only  one  grew  before  deserves  well  of  mankind, 
as  we  are  told,  surely  he  who  gives  us  two  ideas  where 
only  one  existed  before  is  in  the  same  class.  So  much 
is  clear,  I  think,  and  can  be  said  with  safety  of  von 
Ihering's  book. 

But  whether  von  Ihering  ranks  in  mental  stature 
as  a  philosopher  with  Aristotle,  Plato,  Socrates,  Seneca, 
Paul,  Paley,  Butler,  Hobbes,  Locke,  Bentham,  Bacon, 
Spencer,  Darwin,  Kant,  Hegel,  Montesquieu,  Mill, 
Hamilton,  may  be  left  to  the  intelligent  judgment  of 
mankind  • —  it  being  true  in  speculative  philosophies 
as  in  puddings  or  clothes,  viz.,  the  proof  of  the  one  lies 
in  tasting  and  of  the  other  in  wearing  them.  Verily, 
the  reader  of  all  philosophies  must  be  reminded  that 
the  theories  of  today  are  sometimes  exploded  tomorrow ; 
that  the  road  man  has  traveled  is  marked  by  the  grave- 
stone of  this  or  that  philosophy ;  that  what  is  meat  to 
one  age  is  poison  to  another;  that  (as  Marcus  TuUius 
Cicero  tells  us)  "there  is  nothing  so  absurd  as  not  to 
have  been  said  by  some  philosopher."  And  does  not 
Paul  say  (who  was  a  sound  philosopher  and  lawyer  —  a 
fine  combination):  "Beware  lest  any  man  spoil  you 
through  philosophy  and  vain  deceit  after  the  traditions 
of  men,  etc."  So,  the  drama  puts  it:  "There  are  more 
things  in  heaven  and  earth,  Horatio,  than  are  dreamt  of 
in  your  philosophy." 

To  know  anything  well,  one  must  know  it  by  its 
cause  and  by  its  reason.  True  philosophy  consists  in 
looking  with  a  piercing  and  discriminating  eye  beneath 
mere  surfaces  and  appearances,  the  shell  of  things,  to 
the  real  heart,  the  kernel,  of  the  matter.  Religion  has 
its  philosophy,  nature  has  its  philosophy,  the  mind  has 


xxviii  INTRODUCTION 

its  philosophy,  morality  has  its  philosophy,  history  has 
its  philosophy.  Philosophy  surrounds  man  as  water 
does  an  island.  As  Sir  John  Culpepper  said  of  monopoly 
in  the  Long  Parliament,  it  sups  in  our  cup,  it  dips  in  our 
dish,  it  sits  by  our  fire.  It  would  be  strange  indeed,  then, 
if  Law  did  not  have  its  philosophy.  It  emphatically 
has.  And  it  levies  tribute  on  all  other  philosophies,  — 
on  ethics,  logic,  metaphysics,  morals,  nature,  history, 
as  well  as  on  experience  —  which  latter  is  a  school  of 
philosophy  all  to  itself,  withal  having  a  bitter  teacher. 
The  philosophy  of  the  law  overlaps  them  all,  even  as 
Aaron's  rod  swallowed  the  magicians'  rods.  Perad- 
venture,  knowledge  is  not  wisdom.  "Knowledge  comes, 
but  wisdom  lingers."  To  be  a  philosopher  means  to 
be  a  lover  of  wisdom,  and,  by  virtue  of  the  very  term 
(all  sensible  men  being  inclined  to  philosophy),  it  fol- 
lows that  when  we  are  invited,  as  we  are  in  this  book,  to 
go  back 'to  the  very  beginning  of  things  to  get  at  the 
object  and  uses  of  law,  the  why  and  the  wherefore  of 
its  existence,  its  cause,  the  invitation  is  alluring  to  all 
normal  persons,  however  long  and  strange  the  jour- 
ney —  doubly  so  to  the  lawyer  and  jurist,  whose  con- 
cepts, profession  and  occupations  are  directly  involved. 
Even  the  old  man  has  the  divine  itch  to  inquire,  to  know, 
to  see,  to  find  out.  Take  Ulysses:  The  poet  sent  him 
on  his^Iast  voyage  (whereon,  maybe,  he  would  "touch 
the  Happy  Isles  and  see  the  great  Achilles,  whom  we 
knew")  because  of 

"This  great  spirit,  yearning  in  desire 
To  follow  knowledge  like  a  sinking  star 
Beyond  the  utmost  bound  of  human  thought." 

Von  Ihering's  theory,  in  outline,  is  shadowed  forth 
in  these  generalizations:  "The  entire  scheme  of  the 
law  is:  I  exist  for  myself,  the  world  exists  for  me,  I 
exist  for  the  world";     "Law  is  not  the   highest  thing 


INTRODUCTION  xxix 

in  the  world,  not  an  end  in  itself,  but  it  is  merely  a 
means  to  an  end,  the  final  end  being  the  existence  of 
society";  "Our  objective  point  is  the  State  and  the 
Law,  our  starting  point  is  the  individual  himself"; 
"Law  is  the  sum  of  the  conditions  of  social  life  in  the 
widest  sense  of  the  term,  as  secured  by  the  power  of 
the  State  through  the  means  of  external  compulsion"; 
"The  fundamental  idea  of  the  present  work  consists 
in  the  thought  that  purpose'  (human  purpose?)  "is  the 
creator  of  the  entire  law,  that  there  is  no  rule  which 
does  not  owe  its  origin  to  a  purpose,  i.e.,  to  a  practical 
motive." 

Beginning,  as  do  all  philosophers,  at  the  beginning 
(even  the  humorous  ones,  like  our  old  imaginary  friend 
Diedrich  Knickerbocker  in  his  History  of  Neiv  York), 
von  Ihering  takes  egoism,  self-interest,  as  his  beginning 
point.  "Absent  egoism,  there  is  no  spring  or  motive 
power,  and  the  machine  refuses  to  work."  Egoism  is 
the  egg  from  which  all  the  phenomena  of  the  law  and 
social  life  have  been  hatched  —  by  evolution,  as  it  were. 
Barter,  contract,  property,  commerce,  inheritance,  self- 
denial,  self-control,  duty,  right,  justice,  the  law,  the 
State, — one  and  all  sprang  from  egoism.  So  partnerships, 
competition,  culture,  schools,  hospitals,  public  spirit, 
patriotism,  right  as  against  might,  self-defense,  and  the 
splendid  inventions  of  money,  the  alphabet,  exchange, 
credit,  etc.,  —  all  came  by  the  law  of  cause  and  effect 
from  egoism.  The  laws  of  men  do  not  touch 
thoughts  as  thoughts.  However,  the  laws  of  men  have 
to  do  with  the  mind,  the  will,  of  men.  They  deal  with 
the  will  of  man-  when  the  purpose  is  once  formed  and 
comes  into  open  view  through  some  act  or  thing  affect- 
ing another.  Do  your  minds  meet?  Behold  the  contract! 
What  does  the  contract,  the  document,  the  law,  mean? 
Look  for  the  intent!     Is  some  form  of  wrong  (malum 


XXX  INTRODUCTION 

in  se)  held  in  judgment,  the  inquiry  is:  What  was  the 
intent?  ^  For,  as  Justice  Holmes  has  pointed  out,  even 
a  dog  knows  the  difference  between  being  kicked  and 
being  stumbled  over,  between  purpose  and  accident. 
Even  obedience  comes  from  egoism  in  von  Ihering's 
philosophy  (the  will  of  man  first  having  been  broken 
and  tamed  by  the  iron  fist  of  force).  But  he  has  some 
trouble  with  affection  and  friendship.  What  is  to 
become  of  conscience  he  does  not  tell  us.  Under  the 
glow  of  his  ingenious  evolution  of  the  solitary,  primal 
man  (say,  Ab,  who  lived  in  a  cave  and  tackled  the  saber- 
toothed  tiger  with  a  club,  up  to  a  Humboldt  or  a  Glad- 
stone and  the  modern  State),  he  indulges  the  daring 
speculation  that  as  "an  object  is  at  first  taken  up  by  the 
individual,  grown  larger  it  is  taken  over  by  associated 
interests,  at  full  size  it  falls  to  the  lot  of  the  State," 
so,  "if  inference  from  the  past  to  the  future  be  justified, 
the  State  will  in  final  purpose  take  up  within  itself  all 
social  purpose." 

As  said,  von  Ihering's  philosophy  begins  with  man 
as  a  savage,  and  solves  from  thence,  plus  egoism,  the 
riddles  of  law,  civilization,  government  and  social 
conditions  by  the  rule  of  causality,  natural  evolution, 
in  which  results  spring  from  their  antecedents  inevit- 
ably in  an  endless  chain  of  causation.  Darwin  took 
von  Ihering's  primal  man  and  traced  him  back  to  a 
monkey.  (Thereby  hangs  a  tale  over  the  loss  of  one.) 
Is  it  all  so?  Maybe  —  and  maybe  not.  We  need  not 
believe  implicitly;  but  we  are  forced  without  stint 
to  admire  von  Ihering's  bold  and  inquiring  spirit,  which, 
digging  through  the  dust  of  ages  and  casting  doubt  to  the 
wind,  undertakes  to  read  the  everlasting  riddle  of  things 
and  tell  us  the  story  in  words  we  can  understand  and 
with  an  air  of  certainty  and  verisimilitude.  "If  the  play 
of  the  world's  history  was  renewed  a  thousand  times," 


INTRODUCTION  xxxi 

says  Doctor  von  Ihering,  "humanity  would  always  come 
to  the  same  point  where  it  finds  itself  at  the  present,  viz., 
the  law." 

Was  man  originally  a  savage,  or  did  he  retrograde  into 
savagery  now  and  then?  Is  the  "fall"  of  man  an  un- 
thinkable hypothesis?  Are  the  concepts  of  justice,  right, 
truthfulness,  conscience,  mercy,  charity,  friendship,  duty, 
religion,  and  all  the  noble  precepts  of  natural  law  and 
natural  equity,  and  moral  law,  the  result  of  a  slow 
evolution  through  the  ages,  the  result  of  mere  cause  and 
effect?  Or,  are  they  of  divine  origin,  implanted  by 
his  Maker  in  the  breast  of  the  just  man,  as  some  of  us 
old-fashioned  folks  were  taught  to  believe?  If  one  were 
to  say  there  had  not  been  much,  if  any,  advance  in  our 
conceptions  of  those  fundamentals  since  Job  discoursed 
with  his  three  friends  at  the  door  of  his  tent  on  the 
plains  of  Uz,  or  since  the  Sermon  on  the  Mount,  would 
that  saying  be  quite  outside  the  pale  of  fact,  or  beyond 
the  realm  of   philosophy? 

Suppose  some  law-giver  expelled  from  his  laws,  as 
with  a  club,  the  great  primal,  natural,  God-given  (as 
some  of  us  believe)  injunctions  or  concepts  anent  mur- 
der, theft,  fraud  by  lying,  perjury,  adultery,  etc.,  would 
they  long  stay  out?  What  says  the  philosophical  pre- 
cept? Though  you  expel  Nature  as  with  a  club,  be  sure 
she  will  return.  Is  there  not  some  philosophical  basis 
for  the  theory  that  God,  Providence,  has  a  finger  both 
in  man  and  in  his  affairs?  Is  it  not  the  instinctive  def- 
erence to  and  reliance  on  those  natural  equities,  as 
implanted  by  Heaven  in  the  human  breast,  that  causes 
constitutional  limitations  to  be  put  on  the  power  of  the 
legislature  to  abrogate  them  by  law?  May  not  juris- 
prudence be  the  knowledge  of  things  divine  and  human; 
the  science  of  the  just  and  unjust?  May  not  the  law 
of  laws  be  to  love  your  neighbor  as  yourself?  —  to  live 


xxxii  INTRODUCTION 

honestly,  not  to  injure  another,  to  give  to  each  one 
his  due?  So  Ulpian  put  it  and  Justinian  borrowed 
from  him. 

But  this  is  not  a  disquisition.  It  is  an  "Introduc- 
tion," hence  an  intimation  of  two  sides  to  the  proposi- 
tions maintained  by  our  author  is  enough. 

In  groping  through  the  past  and  present,  as  with  a 
candle,  to  find  the  philosophy  of  law,  what  is  the  phil- 
osophical basis  or  point  of  view,  if  any,  for  the  opposi- 
tion to  much  written  law?  The  proverbs  of  the  fireside 
as  well  as  the  observations  of  philosophers  show  that 
such  exist.  For  instance:  Plutarch  tells  us  that  one 
of  the  wise  men  of  Greece  told  Solon  when  he  was  com- 
piling his  code  of  written  laws  that  he  was  wasting  his 
time.  Written  laws,  said  the  doubting  wiseman  (even 
at  that  early  day),  were  mere  cobwebs  through  which 
big  flies  break  and  in  which  little  ones  are  caught, 
"When  the  State,"  says  Tacitus,  "is  most  corrupt,  then 
laws  are  most  multiplied."  So,  Doctor  Johnson:  "A 
corrupt  society  has  many  laws."  So  the  proverbs: 
As  fast  as  laws  are  devised,  their  evasion  is  contrived; 
God  keep  me  from  the  Judge  and  Doctor;  He  that  goes 
to  law  does  as  the  sheep  that  in  a  storm  runs  to  a  briar ; 
There  is  nothing  certain  about  law  but  the  expense; 
In  a  thousand  pounds  of  law  there  is  not  one  ounce  of 
love;  The  laws  are  not  made  for  the  good;  The  law 
has  a  nose  of  wax,  one  can  twist  it  as  he  will ;  The  more 
laws,  the  least  justice;  The  more  laws,  the  more  offenders; 
There  is  no  law  without  a  hole  in  it  if  one  can  find  it 
out.  In  fact,  I  recall  that  one,  ambitious  for  power 
(even  as  Archimedes  longed  for  a  certain  lever  and 
fulcrum),  declared:  "Give  me  the  making  of  the  songs 
of  the  people  and  I  care  not  who  makes  their  laws." 

But  it  is  not  allowed  to  a  man  to  know  everything, 
and,  peradventure,  there  may  be  no  philosophical  basis 


INTRODUCTION  xxxiii 

at  all  for  such  views.  In  either  view  of  it,  Doctor 
von  Ihering  was  justified  in  omitting  them.  It  may 
be  the  austere  and  dry  style  of  most  of  them,  or  the 
forbidding  bulk  of  law  books  may  cause  many  to  be 
frightened  into  not  reading  them.  Certainly  the 
wind  sits  in  that  quarter.  Books,  says  one  who  knew 
them  and  loved  them,  that  you  may  carry  to  the  fire 
and  hold  readily  in  your  hand,  are  the  most  useful  after 
all.  A  man  will  often  look  at  them  and  be  tempted  to 
go  on,  when  he  would  be  frightened  at  books  of  a  larger 
size  and  more  erudite  appearance.  Von  Ihering's  law 
book  fills  the  bill  of  Johnson's  description.  Another 
philosopher  has  said:  "Some  books  are  to  be  tasted, 
others  swallowed,  and  some  few  to  be  chewed  and 
digested."  Law  As  a  Means  to  an  End  is  one  of 
those  Bacon  had  in  mind  to  be  chewed  and  digested. 


INTRODUCTION 
By  W.  M.  Geldart^ 


"Der  Zweck  im  Recht,"  "Law  as  a  Means  to  an 
End,"  or,  to  translate  the  German  words  more  literally, 
"Purpose  in  Law,"  — such  is  the  title  which  Jhering  gave 
to  his  last  great  work.  In  this  title  he  proclaimed  a 
principle,  which,  if  it  has  never  been  inoperative  —  for 
indeed  its  constant  working  is  of  the  essence  of  his 
thesis  —  has  yet  never,  save  perhaps  by  Bentham,  been 
so  clearly  enunciated,  and  has  been  too  often  forgotten 
by  lawyers,  alike  in  the  countries  of  the  Common  Law 
and  in  those  which  to  a  greater  or  less  extent  received  the 
law  of  Rome.  Every  art  and  science  must  needs  have 
its  proper  principles  with  which  to  do  its  work,  and  is 
fairly  entitled  to  protest  against  unwarranted  inter- 
ference>  from  outside,  whether  it  be  the  interference  of 
the  plain  man,  or  of  an  alien  department  of  thought. 
But  the  workers  in  each  special  department  are  too  apt 
to  forget  that  their  branch  is  but  a  branch  of  the  tree 
of  life  and  of  knowledge.  Sooner  or  later  the  complete 
separation  of  any  human  activity  from  other  human 
activities  will  mean  withering  and  death.  Or,  in  other 
words,  the  separation  of  different  departments  is  a  divi- 
sion of  labor,  and  division  of  labor  is  a  form  of  social 
co-operation.  Sooner  or  later  every  group  of  workers 
must  render  an  account  of  its  stewardship,  and  must  seek 
fresh  authority  from  humanity  at  large.  The  isolation 
in  which  law  even  now  finds  itself  has  its  counterpart 
in  the  separation  of  our  Faculties  of  Law  from  the  depart- 
ments which  bear  or  bore  such  names  as  Arts,  Humanity, 
or  Literae  Humaniores. 

iM.A.,  B.C.L.;   Fellow  of  All  Souls  College,  and  Vinerian  Pro- 
fessor of  English  Law  in  the  University  of  Oxford. 


xxxvi  INTRODUCTION 

Whether  Jhering's  work  which  is  now  presented  to  the 
EngHsh  speaking  world  is  a  work  of  legal  philosophy,  or 
whether  he  is  entitled  to  the  name  of  a  legal  philosopher, 
is  a  question  which  may  be  left  to  the  judgment  of  those 
who  have  framed  a  definition,  satisfactory  to  themselves 
and  others,  of  legal  philosophy.  Of  such  definitions  an 
abundance  may  be  found  in  an  earlier  volume  of  this 
series.''  Jhering  himself  regretted  his  want  of  early 
training  in  general  philosophy,  and  a  recent  school, 
which  aflfects  to  belittle  him,  has  taken  him  at  his  word. 
But  if  the  best  thought,  which  is  not  purely  technical, 
on  any  subject  may  be  called  its  philosophy,  then  un- 
doubtedly Jhering  is  a  legal  philosopher  of  the  first 
rank,  the  greatest  thinker  on  law  whom  Germany  has 
produced  since  Savigny. 

And  Jhering  is  something  more  than  a  philosopher 
of  law.  Far  more  clearly  than  the  majority  of  his  country- 
men he  grasped  the  essential  difference  between  l^iw  and 
other  modes  of  social  regulation,  but  he  saw  at  the  same 
time  the  impossibility  of  a  fruitful  study  of  law  in  iso- 
lation from  other  social  factors.  His  insistence  on  the 
positi\'e  character  of  law  is  in  substantial  agreement 
with  the  attitude  of  Austin,  but  his  concern  is  with 
questions  of  function  rather  than  of  formal  definition; 
and  while  he  never  loses  touch  with  the  historical  method 
and  spirit,  his  ultimate  objective  is  what  we  are  accus- 
tomed to  call  censorial  jurisprudence,  or  the  theory  of 
legislation.  And  even  this  is  for  him  only  a  part  of  a 
larger  theory  of  social  functions.  Thus  in  his  second 
volume  he  was  led  to  turn  aside  from  law  and  to  enter 
on  a  consideration  of  the  workings  of  morality  and  social 
habits  and  customs,  and  to  descend  even  to  a  detailed 
discussion  of  the  significance  of  the  forms  of  intercourse 
and  language. 

^Berolzheimer,  "The  World's  Legal  Philosophies.' 


INTRODUCTION  xxxvii 

Jhering's  theory  has  a  value  for  legal  and  social  thought 
in  the  English  speaking  countries  no  less  than  among  his 
countrymen  and  upon  the  Continent  of  Europe.  But  the 
form  in  which  it  is  cast  is  largely  conditioned  by  his 
intellectual  environment,  and  the  conditions  of  his  own 
upbringing,  from  which  throughout  his  life  he  was 
emancipating  himself.  Often  the  English  reader  will  be 
inclined  to  feel  that  he  is  unnecessarily  laboring  a  point, 
or  dealing  at  disproportionate  length  with  matters  which 
might  be  taken  for  granted.  This  is  partly  due  to  a 
thoroughness  which  is  never  content  to  build  until  the 
foundations  have  been  completely  tested;  partly  to  a 
vivid  interest  in  details  which  he  indulges  at  the  expense 
of  form  and  system;  but  very  often  also  to  the  fact 
that  he  is  making  a  protest  against  doctrines  from  which 
he  has  only  by  great  efforts  freed  himself,  and  of  which  we 
have  never  felt  the  hold  and  pressure. 

Therefore  it  may  be  worth  while  to  say  something 
by  way  of  contrasting  the  very  different  course  which 
legal  development  has  taken  in  Germany  as  compared 
with  the  countries  of  the  Common  Law. 

In  England  the  law  of  the  King's  Courts  was  not  a 
subject  of  University  study.  We  may  trace  here  and 
there  the  influence  of  a  mediaeval  logic  on  the  formation 
of  legal  conceptions,  we  may  find  here  and  there  that  a 
reference  to  the  law  of  nature  will  serve  to  help  an 
argument  on  its  way,  but  for  the  most  part  our  law 
remained,  in  the  ordinary  sense  of  the  word,  frankly 
unacademic.  In  this  there  was  enormous  gain.  If  we 
lost  the  advantages  of  method  which  a  study  of  the  civil 
law  gave,  we  were  saved  the  dangers  of  putting  new 
wine  into  old  bottles,  we  were  saved  from  the  importa- 
tion of  doctrines  which  had  little  to  do  with  facts.  The 
King's  Courts  and  the  Moots  and  Readings  of  the  Inns 
were    the    Common   Lawyer's   University,  —  a   narrow 


xxxviii  INTRODUCTION 

school  it  may  be,  if  we  think  of  general  culture,  but  a 
school  at  every  moment  in  touch  with  practice  and  with 
life.  Formalism  and  fiction  and  artificiality  there  might 
be ;  but  through  these  and  by  means  of  these  the  needs  of 
men  were  realized.  Over  and  over  again  Jhering's  thesis 
might  be  illustrated  from  our  own  law.  In  many  a 
development,  where  much  else  is  obscure,  the  purpose 
is  as  clear  as  daylight.  The  formal  reasons  which  are 
given  for  the  effect  of  a  common  recovery  in  barring  an 
estate  tail  are  unsatisfying  enough;  about  the  purpose 
which  was  at  work  there  can  be  no  doubt.  How  the 
doctrine  of  consideration  came  to  be  adopted  is  a  matter 
still  of  discussion  and  research,  but  the  enforceability 
of  informal  agreements  was  a  concession  to  practical 
needs,  and  one  may  suspect  that  practical  requirements 
had  as  much  as  anything  to  do  with  the  refusal  to  extend 
enforceability  in  the  absence  of  consideration.  And  if 
we  ask  why  our  Courts  drove  a  coach  and  four  through 
the  Statute  of  Uses,  the  true  answer  is  not  that  a  use 
cannot  be  engendered  of  a  use  (which  even  formally  is 
not  the  whole  truth),  but  that  Englishmen  could  not 
live  without  uses  and  trusts. 

Still,  as  time  went  on,  all  was  not  well  with  the  Com- 
mon Law.  It  could  break  new  ground;  it  could  still 
in  the  eighteenth  century  embody  large  parts  of  the 
Law  Merchant;  but  it  could  not  reject  what  was  once 
accepted.^  The  w^orst  parts  of  the  Criminal  Law,  of  the 
law  of  evidence,  of  real  propert>%  of  the  law  of  husband 
and    wife,  were   irrevocably   fixed.     The  more   the  law 

*  The  movement  from  precedent  to  precedent  is  not  always 
broadening;  it  may  lead  into  the  narrowest  of  blind  alleys.  It  is 
one  thing  to  see  the  immediate  needs  of  the  particular  case;  another 
to  find  a  principle  which  will  serve  for  the  future.  Many  a  time  the 
good  sense  of  our  judges  has  enabled  them  to  keep  the  wider  end 
in  view;   but  not  always.     Often  the  dead  past  barred  the  way. 


INTRODUCTION  xxxix 

showed  itself  at  variance  with  the  needs  of  modern  life, 
the  more  inclined  were  its  defenders  to  treat  it  as  the 
perfection  of  reason.  The  debt  which  the  seventeenth 
century  owed  to  the  formalism  which  had  saved  the 
liberties  of  England  was  repaid  with  usurious  interest 
by  the  complacency  of  the  eighteenth.  It  needed  the 
genius  of  Bentham  to  make  men  see  once  more  that  law 
was  made  for  man  and  not  man  for  law.  Since  his  time 
legislation  has  been  active  enough,  and  most  of  the  abuses 
against  which  he  protested  have  been  removed  or 
mitigated .  But  much  of  the  evil  of  a  divorce  between  law 
and  the  life  of  the  community  remains.  Rules  and  dis- 
tinctions survive  which  have  ceased  to  have  any  prac- 
tical value,  if  they  ever  had.  Law  remains  a  very 
esoteric  science.  Legislative  reform  has  made  it  more 
serviceable  but  not  more  intelligible  to  the  layman,  and 
lawyers  and  judges  constantly  immersed  in  the  details 
of  a  particular  case  rarely  have  time  to  think  of  the 
wider  purposes  for  which  law  exists.  Public  policy 
has  rightly  been  described  as  an  unruly  steed:  but 
sometimes  there  is  no  other;  and  woe  to  the  untrained 
rider. 

Very  different  has  been  the  course  of  legal  develop- 
ment in  Germany.  Without  any  but  the  most  shadowy 
political  unity,  with  no  common  legislature,  no  common 
judicial  system,  it  was  saved  from  a  complete  diversity 
in  the  development  of  its  local  laws  only  by  the  recep- 
tion of  the  Roman  Law.  Thus  a  learned  law,  a  law 
taught  and  learned  in  Universities,  became  the  Common 
Law  of  Germany,  largely  superseding  the  native  and 
local  law,  ready  to  step  in,  at  any  rate,  where  the  local 
law  was  silent. 

It  followed  that  the  field  upon  which  law  could  make 
new  growth  was  the  University  rather  than  the  Courts: 
the  men  "learned  in  the  law"  were  professors  or  writers 


xl  INTRODUCTION 

rather  than  judges  and  advocates,  and  the  former  class 
exercised  an  influence  over  its  development  which  it  is 
hard  for  us,  brought  up  in  the  traditions  of  judge-made 
law,  to  understand.  These  conditions  had  the  advantage 
of  preserving  for  law  a  place  among  other  liberal  studies 
and  fertilizing  it  by  contact  with  them;  but  they  weak- 
ened its  hold  upon  immediate  practical  needs,  and  hin- 
dered the  drawing  of  any  sharp  line  between  law  and  the 
principles  of  moral  and  political  science.  The  Roman 
Law  texts  were  largely  inapplicable  to  modern  condi- 
tions; but  it  was  assumed  that  a  right  interpretation 
could  find  in  them  underlying  principles  of  universal 
applicability.  And  while  on  the  one  hand  the  eighteenth 
century  system  of  "natural  law"  or  "natural  rights"  was 
largely  a  generalized  statement  of  principles  ultimately 
derived  from  Roman  Law  as  viewed  in  the  light  of 
modern  usage,  violence  was  often  done  to  the  texts  in 
the  desire  to  make  them  fit  in  with  the  results  of  a  priori 
theory.  The  philosophical  upheaval  at  the  end  of  the 
eighteenth  and  the  beginning  of  the  nineteenth  century 
shattered  the  basis  of  the  doctrine  of  natural  rights, 
and  the  spirit  of  scholarship  and  historical  investi- 
gation, of  which  Savigny  was  the  foremost  representative 
in  the  field  of  law,  insisted  on  a  truthful  interpretation 
of  the  texts,  which  in  the  long  run  was  bound  to  be 
incompatible  with  their  adaptation  to  the  needs  of  modern 
life. 

The  characteristic  doctrine  of  the  German  historical 
school  that  law  is  a  growth  determined  by  a  somewhat 
mystically  conceived  national  will,  had  the  immediate 
effect  of  checking  schemes  for  codification  and  legisla- 
lation.  The  production  of  law  was  regarded  as  some- 
thing analogous  to  a  natural  process,  with  which  the 
legislator  could  not  and  ought  not  to  interfere;  the 
most  that  might  be  permitted  to  him  was  to  give  a 


INTRODUCTION  xli 

clearer  expression  to  the  national  will  as  manifested  in  exist- 
ing practice  and  custom,  or  to  apply  correctives  in 
matters  of  detail.  The  civilized  world  owes  an  enor- 
mous debt  to  the  historical  school  for  the  services  of 
brilliant  and  patient  investigation  which  it  has  rendered, 
and  which  have  been  continued  in  Germany  and  else- 
where long  after  its  favorite  doctrines  had  fallen  to  the 
ground:  and  Germany  has  good  cause  to  be  grateful 
to  it  for  preventing  a  premature  codification.  But  its 
conception  of  law  was  bound  to  be  sterile  of  practical 
results,  above  all  in  a  country  where  popular  participation 
in  the  making  and  application  of  the  law  was  at  a  mini- 
mum. For  all  practical  purposes  the  popular  will  had  to 
be  regarded  as  residing  in  the  legislator,  the  judge  and  the 
scientific  lawyer  (above  all  the  latter),  in  whom  alone  it 
could  find  any  conscious  expression.  No  doubt  by  the 
stress  which  it  laid  on  national  individuality,  the  historical 
school  stimulated  the  investigation  of  German  legal 
antiquities,  and  favored  the  dream  of  a  reconstruction 
and  revival  of  the  native  law;  and  this  tendency  has 
had  important  practical  results  in  the  modern  Imperial 
Code.  But  for  immediate  purposes  recourse  was  had 
again  to  the  texts  of  the  Roman  Law.  They  were  sub- 
jected to  a  critical  examination,  assisted  by  all  the 
resources  of  modern  scholarship:  leading  conceptions 
were  discovered  in  them,  and  from  these  conceptions 
the  consequences  must  be  deduced  with  rigorous  logic. 
The  conceptions  must  be  reasonable,  if  not  in  regard 
to  practical  needs,  at  any  rate  in  regard  to  the  require- 
ments of  the  philosophy  of  law;  they  must  also  be 
consistent  with  the  texts.  Extraordinary  acuteness, 
ingenuity  and  labor  were  brought  to  bear  upon  the 
task,  and  with  the  most  fruitful  results;  it  is  not  too 
much  to  say  that  without  the  work  of  Savigny  and  his 
followers  the  Imperial  Code  of  modern  Germany  would 
have  been  an  impossibility. 


xlii  INTRODUCTION 

But  it  is  equally  true  that  it  would  have  been  impos- 
sible without  Jhering.  For  the  method  against  which  he 
revolted  was  fundamentally  unsound.  It  could  only 
work  by  something  like  a  pious  fraud.  Though  natural 
rights  were  discarded,  there  was  bound  to  be  a  reversion 
to  something  like  the  procedure  of  the  natural  rights 
school.  The  fundamental  conceptions  must  carry  con- 
viction as  in  themselves  necessary,  and  they  must  be 
present,  or  at  least  implied  in,  or  consistent  with  the 
texts.  An  unconscious  juggling  was  inevitable;  you 
must  put  into  your  legal  concept  the  results  which  you 
wish  to  get  out  of  it;  you  must  put  a  non-natural  sense 
upon  the  text  to  make  it  square  with  the  concept. 
Worst  of  all,  in  the  desire  to  satisfy  the  requirements  of 
philosophy  and  scholarship  practical  considerations  were 
forgotten  or  deliberately  neglected.  "Law,"  says  Beth- 
mann-Hollweg,  a  favorite  pupil  of  Savigny,  "is  an  object 
of  pure  science,  and  pure  science  is  in  no  way  concerned 
with  the  question  of  application  or  applicability."' 
In  the  present  work  Jhering  has  occasion  to  reprobate 
the  teaching  of  Puchta  that  the  legislator  may  deprive 
customary  law  of  its  enforcement  in  the  Courts  and  yet 
cannot  deprive  it  of  its  character  as  law.  An  English 
lawyer  will  have  no  difficulty  in  understanding  the  sar- 
casm which  Jhering  elsewhere  pours  out  on  the  "Begriff- 
jurisprudenz"  of  Puchta,  when  he  learns  that  the  latter 
asserted  as  matters  of  principle  the  absolute  inconceiva- 
bility of  a  partial  intestacy  and  of  a  genuine  represen- 
tation of  the  principal  by  the  agent. ^ 

Yet  Jhering  was  himself  brought  up  in  this  very  school, 
and  dedicated  the  first  part  of  his  "Geist  des  romi- 
schen  Rechts"  ("Spirit  of  the  Roman  Law")  to  Puchta's 

'  Quoted  by  Landsberg,  "Geschichte  der  deutschen  Rechtswissen- 
schaft,"  III,  2,  notes,  110. 
•  Landsberg,  III,  2-453. 


INTRODUCTION  xliii 

memory.  Even  here  one  can  see  the  beginnings  of  the 
breach  with  his  teacher.  It  is  one  thing  (as  he  sees)  to 
have  to  deal  with  Roman  Law  as  existing  law,  another 
to  understand  it  in  its  historical  development;  its  method 
and  its  history  are  of  value  for  all  time,  but  the  rules 
of  Roman  Law  have  no  universal  validity.  "Through 
Roman  Law  but  beyond  it"  is  the  motto  which  sums 
up  in  his  eyes  the  significance  of  the  Roman  Law  for 
the  modern  world.  Thus  his  outlook  was  directed 
ever  more  towards  the  present  and  the  future.  The 
"Spirit  of  the  Roman  Law"  was  never  finished.  More 
and  more  as  the  work  proceeded  he  felt  the  trammels 
which  his  program  imposed  on  his  utterance  of  the 
thoughts  which  he  now  had  most  at  heart.  In  the 
last  portion  which  appeared  of  the  "Spirit"  (the  first 
division  of  the  third  part)  his  repudiation  of  the 
treatment  of  law  as  if  it  were  a  system  of  logical  cate- 
gories and  his  conceptions  of  purpose  as  the  determining 
factor  in  law,  of  "protected  interest"  as  the  essence 
of  legal  right,  came  to  the  front.  But  he  could  no  longer 
be  content  to  expound  fundamental  doctrines  under 
the  guise  of  criticism  of  ancient  law. 

It  was  thus  that  the  "Zweck  im  Recht"  came  to  be 
written,  a  work  of  which  it  may  fairly  be  said  that  it 
freed  German  legal  thought  from  the  shackles  of  the 
Digest  and  the  usurpations  of  philosophic  systems.  Not 
but  what  much,  incalculably  much  of  permanent  value 
had  been  accomplished  under  those  hard  task-masters : 
Jhering's  work  itself  could  not  have  been  done  but  for 
them.  But  the  time  had  come  for  a  return  to  the  reali- 
ties of  the  present,  and  for  raising  the  embargo  which 
Savigny  had  laid  on  legislation. 

Of  the  significance  of  Jhering's  teaching  for  the 
student  of  the  social  sciences  and  for  those  who  are  con- 
cerned, whether  as  thinkers  or  as  practical  men,  with 


xliv  INTRODUCTION 

social  and  legislative  problems,  a  few  words  may  be 
said.  His  repudiation  of  a  "jurisprudence  of  concepts" 
and  of  the  "written  reason"  of  the  Roman  Law  as  the 
last  word  in  legal  and  legislative  theory  led  him  to  reject 
the  individualism  of  the  early  and  middle  nineteenth 
century,  and  the  stress  which  he  laid  on  social  utility 
gave  an  impulse  and  a  justification  to  the  "collectiv- 
ism" (to  use  the  word  in  the  wude  sense  with  which 
Professor  Dicey  ^  has  used  it)  which  has  been  the  most 
characteristic  tendency  of  our  own  time  and  the  force 
of  which  is  not  yet  spent.  That  is  on  the  face  of  it  the 
most  striking  and  immediate  consequence  of  Jhering's 
doctrine.  It  is  at  any  rate  the  practical  conclusion 
which  he  drew  for  our  own  time,  and  whether  we  approve 
of  it  or  not,  it  is  at  least  to  his  credit  that  he  foresaw  the 
urgency  of  claims,  which,  when  he  wrote,  were  barely 
beginning  to  make  themselves  heard.  For  my  own  part, 
I  believe  that  for  present  needs  this  "collectivist"  ten- 
dency is  justified,  and  its  dangers  often  unnecessarily 
feared  and  exaggerated.  But  a  comparison  of  Jhering's 
doctrine  with  that  of  Bentham  seems  to  me  to  show  that 
the  principle  of  social  utility  as  conceived  by  Jhering  is 
not  inconsistent  with,  and  indeed  requires,  a  due  appre- 
ciation of  the  claims  of  the  individual,  while  Bentham's 
teaching  is  capable  of  conversion  to  the  uses  of  the 
completest  absolutism. 

But  before  I  turn  to  this  comparison,  I  should  like 
to  call  attention  to  some  practical  considerations  of  a 
more  general  kind  which  follow  from  Jhering's  main 
position. 

On  the  one  hand  the  conception  of  law  as  determined 
by  purpose  will  strengthen  our  respect  for  and  confidence 
in  law.     We  shall  believe  that  for  the  most  part  it  is 

'  "Law  and  Opinion,"  Lecture  IV,  et  passim. 


INTRODUCTION  xlv 

the  outcome  of  human  experience  and  has  received  and 
retained  its  force  because  it  gives  effect  to  the  greatest 
common  measure  of  human  needs.  We  shall  be  prepared 
to  meet  the  demands  for  innovation  or  revolution  on  a 
common  ground.  We  shall  not  present  our  law  as  a  closed 
system  of  unalterable  principles  in  which  no  breach 
may  be  made;  we  shall  not  put  it  forward  as  the  per- 
fect work  of  reason.  On  the  contrary  we  shall  admit 
the  claim  that  human  institutions  must  satisfy  human 
needs.  But  we  shall  assert  with  some  confidence  that 
this  claim  has  never  been  wholly  disregarded  in  the 
making  of  law.  We  shall  rely  on  a  strong  presumption 
that,  at  least  in  its  main  outlines,  our  law  serves  and  has 
served  those  needs.  Where  a  crying  evil  is  pointed  out 
as  calling  for  immediate  reform  of  the  law,  we  shall  ask 
whether  it  is  certain  that  the  law  has  not  already  taken 
account  of  it,  refused  to  interfere  for  the  good  reason 
that  to  do  so  would  be  to  prejudice  higher  and  wider 
needs.  It  is  only  in  this  fashion  that  the  existing  legal 
order  can  be  defended  against  rash  claims,  whether 
founded  on  self-interest  or  sympathy. 

On  the  other  hand,  we  shall  oppose  no  deaf  ears  to 
such  claims.  If  we  give  up,  as  I  believe  we  are  bound 
to  do,  the  notion  of  natural  rights  in  the  sense  of  particu- 
lar institutions  to  which  every  system  of  positive  law 
ought  without  regard  to  consequences  to  give  effect,  we 
shall  not  be  able  to  set  up  any  rule  of  law  as  sacred 
and  exempt  from  criticism  and  attack.  For  if  the  belief 
in  the  purposive  character  of  law  is  a  justification  for 
optimism,  this  is  no  uncritical  optimism;  and  it  is  no 
part  of  Jhering's  doctrine  that  law  has  at  any  time 
succeeded  fully  in  giving  effect  to  the  purposes  which  it 
serves,  and  it  is  no  answer  to  that  doctrine  to  point  to 
the  fallibility  of  lawyers  and  legislators.  Again,  it  is 
true  that  law  would  have  been  impossible  if  at  every 


xlvi  INTRODUCTION 

moment  it  was  required  to  have  regard  to  purpose. 
The  purposes  of  law  are  embodied  in  legal  conceptions 
which  must  develop  in  independence  and  cannot  at  every 
step  be  called  upon  to  conform  to  particular  needs. 
Otherwise  system  and  certainty  would  be  unattainable. 
But  this  autonomy  of  law,  if  it  were  only  because  of 
excess  or  defects  of  logic,  will  lead  to  a  divergence 
between  law  and  the  needs  of  life,  which  from  time  to 
time  calls  for  correction.  Further,  the  preponderance 
now  of  this,  now  of  that  class  in  the  community  has 
led  to  the  advancement  of  purposes  which  are  at  variance 
with  the  interests  of  other  classes  which  attain  or  seek 
political  power.  Lastly,  changes  whether  in  economic 
conditions  or  in  opinions  and  ideals  bring  to  light  new 
purposes  which  the  law,  formed  under  other  conditions, 
material  or  moral,  is  incapable  of  adequately  ser^'ing. 
Law  cannot  therefore  refuse  at  any  time  to  submit  to 
criticism  any,  even  its  most  fundamental  principles,  if 
they  are  challenged  on  the  ground  that  they  do  not 
serve  or  have  ceased  to  serve  the  needs  of  mankind;  it 
can  only  insist  that  the  challenge  shall  be  made  good  by 
proof.  How  far  if  at  all  the  needful  changes  can  or 
ought  to  be  carried  out  by  judicial  decisions  or  the 
development  of  legal  theory,  and  how  far  the  interven- 
tion of  the  legislator  will  be  called  for,  is  a  matter 
that  will  vary  from  one  legal  territory  to  another  accord- 
ing to  the  accepted  traditions  as  to  the  binding  force  of 
precedents,  the  character  of  the  enacted  law,  and  the 
wider  or  narrower  liberty  of  judicial  interpretation. 

Jhering  stands  alone,  or  almost  alone,  among  German 
writers  in  his  admiration  for  Bentham's  work;  there  is 
much  in  common  in  the  qualities  of  their  genius,  in 
their  deep  but  not  uncritical  optimism,  in  their  repug- 
nance to  doctrines  of  natural  right,  in  their  determination 
to  keep  in  touch  with  the  facts  of  life.     Both  show  a 


INTRODUCTION  xlvii 

curious  trait  of  what  looks  like  pedantry,  Bentham  in 
his  elaborate  classifications  and  love  of  coining  words  for 
the  purpose  of  marking  distinctions,  Jhering  in  his 
rather  naYve  faith  in  the  possibility  of  discovering  the 
inner  meaning  of  a  word  by  a  reference  to  its  derivation. 
But  these  are  mere  surface  mannerisms.  Both  are 
fundamentally  at  one  in  their  conceptions  of  the  functions 
of  law. 

But  Jhering  has  two  great  advantages.     In  the  first 

place    Bentham's   unhistorical  mind  often   made   him 

see  in  the  past  and  present  nothing  but  a  record  of  folly 

and  injustice,  and  led  him  to  believe  that  a  new  heaven 

and  a  new  earth  could  be  established  by  the  recognition 

and   application   of   the   principle   of   utility.     Jhering, 

though  alive  to  the  one-sidedness  of  the  historical  school, 

was  full  of  the  historical  spirit,  and   could  see  that  the 

principle  of  utility  had  always  been  at  work,  however 

unconsciously,  in  human  affairs.     In  the  second  place, 

Bentham  had  embarrassed  his  doctrine  by  a  particular 

and  untenable  theory  of  the  nature  of  utility,  the  theory 

that  the  only  purposes  of  human  action  are  in  the  last 

resort  the  pursuit  of  pleasure  and  the  avoidance  of  pain, 

and  had  professed  to  establish  a  calculus  by  means  of  the 

summation  of  pleasures  and  pains,  which  should  afford 

a  criterion  of  ethics  and  legislation. 

It  was  this,  above  all,  that  stood  in  the  way  of  Ben- 
tham's recognition  in  philosophic  Germany.  What 
made  him  the  force  that  he  was  in  England  and  in  the 
English  speaking  world  was  not  his  hedonism,  but  his  ' 
acute  perception  of  the  purposes  which  intelligent  men 
would  desire  to  see  carried  out,  and  of  the  reforms  which 
were  necessary  in  order  to  carry  them  out.  It  did  not 
need  a  theory  of  the  greatest  happiness  of  the  greatest 
number  to  convince  men  that  humanity  in  the  criminal 
law,  reasonable  rules  of  evidence,  freedom  from  antiquated 


xlviii  INTRODUCTION 

restrictions  on  contract,  would  further  desirable  purposes. 
The  calculus  of  pains  and  pleasures  was  a  superstructure 
which  men  might  accept  or  reject,  but  which  made  no 
difference  in  the  value  of  the  reforms,  when  once  men 
had  grasped  the  idea  that  the  law  was  their  servant  and 
not  their  master.  Jhering  rejects  hedonism  and  eudaemon- 
ism;  as  he  sees  that  human  nature  rejects  them;  and 
he  finds  no  short  cut,  like  Bentham's  calculus,  to  the 
determination  of  the  priorities  among  competing  pur- 
poses. 

We  must  remember  that  his  book  is  a  fragment, 
and  that  he  never  lived  to  carry  out  his  intention  (stated 
at  the  end  of  Chapter  IV)  of  answering  the  question, 
"What  is  purpose?"  But  if  he  had  done  so,  it  seems 
probable  that  the  answer  to  this  question  would  have 
been  a  determination  rather  of  the  form  of  the  concep- 
tion of  purpose  than  of  its  content.  The  truth  is  that  to 
set  out  an  order  of  priority  among  purposes  as  univer- 
sally valid  would  be  to  fall  back  on  something  very  like 
"natural  right";  as  indeed  Bentham's  greatest  happi- 
ness principle  was  unconsciously  a  reversion  to  that 
doctrine.  We  cannot  measure  the  value  of  ends  by 
reference  to  some  other  standard,  and  therefore  the 
search  for  such  a  standard  is  illusory.  All  that  we  can 
demand  is  such  a  conception  of  their  relations  to  each 
other  as  will  be  consistent  with  men's  moral  conscious- 
ness. That  this  consciousness  differs  from  man  to  man 
may  afford  a  problem  for  ethical  theor>' ;  but  for  the  prac- 
tical life  of  the  individual,  and  even  more  for  the  task 
of  the  legislator,  the  agreement  far  outweighs  the  differ- 
ences. 

In  one  sense  Bentham  is  an  individualist,  while 
Jhering's  conception  is  one  of  social  utility.  For  Ben- 
tham all  ends  are  the  pleasures  and  pains  of  individuals: 
society  is  nothing  but  a  sum  of  individuals,  and  utility 


INTRODUCTION  xlix 

depends  on  nothing  but  the  sum  of  their  pleasures  and 
pains.  It  is  true  that  Jhering's  work  as  far  as  we  have 
it  is  so  much  concerned  with  the  exposition  of  the  use 
which  society  makes  of  the  egoistic  motives,  and  in  the 
showing  that  the  balance  of  accounts  between  the 
individual  and  society  shows  a  balance  of  individual 
satisfaction  in  his  favor,  that  one  may  get  the  impression 
that  at  bottom  his  social  utility  would  turn  out  to  be 
nothing  but  a  sum  of  individual  utilities.  It  is  true  that 
he  nowhere  clearly  works  out  the  conception,  but  his 
criticism  of  Bentham  in  his  second  volume  makes  it 
clear  to  my  mind  that  he  would  have  rejected  such  a 
conclusion.  What  he  says  there  of  patriotism  seems 
inconsistent  with  the  notion  that  he  would  have  treated 
patriotism  as  nothing  more  than  an  interest  in  the  wel- 
fare of  a  number  of  present  or  future  individuals. 

Further,  it  is  notorious  than  in  a  very  practical  sense 
Bentham  was  an  individualist,  because  he  believed  that 
the  removal  of  restrictions  would  tend  to  a  very  great 
increase  in  human  happiness  including  a  high  degree  of 
equality  in  the  distribution  of  wealth.  Jhering  has  no 
such  confidence.  It  is  true  that  he  rightly  appreciates 
the  value  of  contract  and  property  as  levers  in  the  social 
mechanism,  but  he  refuses  to  approve  as  a  matter  of 
course  of  the  enforcement  of  every  contract  merely 
because  it  is  a  contract  not  subject  to  some  specific  vice: 
he  approves  of  guild  regulations  and  the  suppression  of 
the  interloper;  he  is  clear  that  the  right  of  property  is 
founded  upon,  and  may  have  to  give  way  to  considera- 
tions of  social  utility.  This  is  a  difference  in  the  appli- 
cation of  principles  rather  than  in  the  principles  them- 
selves, and  Bentham 's  views  on  the  relief  of  poverty  and 
the  limitation  of  the  rights  of  succession  to  property 
show  that  he  was  no  unbending  individualist.  Neverthe- 
less for  practical  purposes  Bentham's  direct  influence 


I  INTRODUCTION 

was  all  on  the  side  of  the  individualism  of  the  early 
nineteenth  century,  while  Jhering  may  fairly  be  reckoned 
as  a  herald  of  the  collectivism  which  marked  its  close. 

But  from  another  point  of  view  the  positions  are 
reversed.  Once  satisfy  the  Benthamite  that  the  economic 
assumptions  on  which  his  individualism  is  based  are 
unsound,  and  for  purposes  of  practical  politics  that  indi- 
vidualism collapses.  If  unlimited  freedom  of  contract 
does  not  make  for  the  greatest  happiness  of  the  greatest 
number  (and  in  practice  material  well  being  will  be  the 
main  consideration),  if  it  seems  likely  that  such  well- 
being  can  be  increased  by  regulation  and  interference, 
then  Bentham's  utilitarianism  not  only  permits,  but 
requires  that  individualism  shall  give  way  to  the  greatest 
practicable  collectivism.  Professor  Dicey  has  rightly 
called  attention  to  the  debt  of  collectivism  to  Bentham.' 
Now  it  is  certain  that  Jhering  would  have  sympathized 
with  the  general  trend  of  modern  legislation  in  this  direc- 
tion  and  would  probably  have  approved  of  it  largely  in 
detail. 

It  is  clear  that  he  looked  with  approval  on  the  move- 
ment which  transferred  large  departments  of  action 
first  from  individuals  to  voluntary  societies  and  then 
from  societies  to  the  state.  He  was  not  prepared  to  set 
any  limits  to  the  increase  of  state  activity.  Further,  it  is 
clear,  from  his  criticism  of  von  Humboldt  and  John 
Stuart  Mill  in  the  eighth  chapter,  that  he  sees  no  way  to 
define  a  sphere  of  individual  liberty  within  which  the 
interference  of  the  State  is  illegitimate.  But  what  is 
equally  clear  is  that  he  did  not  draw  the  easy  conclusion 
that  all  rights  of  the  individual  must  disappear  in  the 
last  resort  in  the  face  of  the  claims  of  social  utility.  On 
the  contrary  he  recognizes  the  question  of  the  limits  of 

«  Law  and  Opinion,  Lecture  IX. 


INTRODUCTION  li 

the  power  of  the  state  and  the  law  over  against  the  sphere 
of  individual  liberty  as  a  real  problem,  and  one  which 
bars  his  way  and  which  he  cannot  solve.  He  cannot 
solve  it,  that  is,  in  the  sense  in  which  the  upholders  of 
natural  right  claim  to  find  a  solution,  a  formula  which 
shall  be  good  for  all  time  and  under  all  conditions. 
And  he  seems  right  in  holding  that  in  this  sense  the 
question  is  an  insoluble  one,  that  it  is  as  he  says  an  "ever 
fluid"  question,  one  which  will  receive  a  different  answer 
at  different  times  and  under  varying  conditions.  Biit 
the  admission  that  there  is  a  problem  is  a  concession  of 
all  that  is  worth  preserving  in  the  doctrine  of  natural 
rights,  namely  its  insistence  on  the  reality  and  value 
of  the  individual.  And  while  he  rejects  its  attempt  to 
treat  law  and  society  as  merely  derivative,  at  the  same 
time  he  steers  clear  of  the  tendency  of  some  at  least  of 
its  critics  to  treat  society  as  the  only  reality.  Bentham's 
doctrine,  while  it  on  the  one  hand  repudiates  natural 
rights  and  on  the  other  looks  upon  the  institutions  of 
society  as  nothing  more  than  a  machinery  for  increasing 
the  sum  total  of  pleasurable  sensations,  puts  no  value 
upon  the  individual  save  as  the  receptacle  of  such  sensa- 
tions; it  has  no  answer,  for  instance,  to  the  claim  of  a 
majority  to  oppress  a  minority,  if  once  the  majority  is 
satisfied  that  the  increase  of  its  pleasure  will  outweigh  in 
quantity  the  pain  of  the  oppressed. 

It  has  been  said  of  Jhering  that  with  all  his  theoretical 
utilitarianism  he  remained  a  practical  idealist.  This 
estimate  correctly  emphasizes  the  two  sides  of  his  social 
philosophy;  but  it  should  not  mislead  us  into  thinking 
that  there  is  any  inconsistency  between  them.  Plato 
too  was  a  utilitarian,  as  well  as  an  idealist,  and  his 
example  should  warn  us  against  the  confusion  of  utili- 
tarianism and  hedonism.  In  its  true  sense  utilitarianism 
is  nothing  but  a  refusal  to  isolate  any  part  of  human 


Hi  INTRODUCTION 

action  and  to  consider  it  apart  from  its  consequences,  a 
refusal  to  believe  that  in  the  last  resort  ideals  can  be 
unrelated  or  hostile  to  one  another.  It  is  by  his  insist- 
ence on  this  truth  that  Jhering's  work  has  done  and  will 
continue  to  do  the  greatest  service  in  furthering  the 
advancement  of  law  and  legal  science,  and  bringing  them 
into  a  right  relation  to  other  departments  of  human 
activity  and  knowledge. 

All  Souls  College,  Oxford. 
October,  1913. 


AUTHOR'S  PREFACE 


The  book,  of  which  I  herewith  present  the  first  half 
to  the  pubHc,  is  an  offshoot  of  my  work  on  the  Spirit 
of  Roman  Law  ("Geist  des  romischen  Rechts").  The 
last  volume  of  that  treatise  (Part  III,  division  1),  which 
appeared  in  1865  in  its  first  edition,  concluded  with  the 
establishment  of  a  theory  of  "rights  in  the  subjective 
sense."  In  it  I  gave  a  definition  differing  from  the 
prevailing  one,  by  putting  Interest  instead  of  Will  at  the 
basis  of  law.  The  further  justification  and  illustration  of 
this  point  of  view  was  reserved  for  the  succeeding  volume. 
In  the  course  of  its  development,  however,  I  soon  went 
beyond  this  point  of  view.  The  concept  of  Interest 
made  it  necessary  for  me  to  consider  Purpose,  and  "right 
in  the  subjective  sense"  led  me  to  "right  in  the  objec- 
tive sense."  Thus  the  original  object  of  my  investiga- 
tions was  transformed  into  one  of  much  greater  extent, 
into  the  object  of  the  present  book,  viz.,  Law  as  a  means 
to  an  end.  Once  this  question  came  before  me,  I  was 
no  longer  able  to  avoid  it;  it  always  emerged  again  in 
one  form  or  another.  It  was  the  sphinx  which  imposed 
its  question  upon  me,  and  I  must  solve  its  riddle  if  I 
would  regain  my  scientific  peace  of  mind. 

I  think  it  necessary  to  make  this  explanation  because 
it  tells  the  reason  which  prevented  me  from  continuing 
the  above  work.  I  cannot  return  to  it  until  the  present 
work  is  finished.  For  me,  personally,  the  latter  has 
become  my  paramount  interest,  and  it  has  relegated 
the  above  work,  which  I  had  formerly  considered  my 
life  work,  to  a  secondary  place.  It  is  possible  that  the 
judgment  of  the  world  will  determine  the  relative  value 
of  the  two  works  differently  from  the  way  I  do.  But 
tome, personally, no  choice  was  left  between  the  two. 


liv  AUTHOR'S  PREFACE 

The  fundamental  idea  of  the  present  work  consists 
in  the  thought  that  Purpose  is  the  creator  of  the  entire 
law;  that  there  is  no  legal  rule  which  does  not  owe  its 
origin  to  a  purpose,  i.e.,  to  a  practical  motive.  The 
second  part  of  the  book  is  devoted  to  the  establishment 
of  this  principle,  and  to  the  detailed  exposition  and 
illustration  of  it  in  connection  with  the  most  important 
phenomena  of  law.  The  first  part  was  originally  out- 
side of  my  calculation,  it  was  wrested  from  me  against 
my  will.  I  had  to  say  to  myself  that  a  book  which 
intends  to  make  purpose  the  foundation  of  the  entire 
system  of  law  must  give  an  account  of  the  concept  of 
purpose.  I  should  have  been  glad  to  borrow  it  from 
others  and  build  upon  the  results  gained  by  them,  but 
I  was  convinced  that  they  did  not  give  me  what  I  was 
looking  for.  The  best  thing  I  met  in  my  search  is, 
according  to  my  opinion,  the  discussions  of  Trendelen- 
burg in  his  "Logische  Untersuchungen,"  (Vol.  2,  3d  ed. 
Leipzig,  1870,  pp.  14  ff.),  masterh-  in  form  and  content. 
But  the  height  and  the  breadth  in  which  the  problem  is 
there  conceived,  viz.,  purpose  as  a  world-forming  prin- 
ciple, yielded  nothing  for  the  limited  point  of  view  from 
which  I  had  to  consider  purpose,  viz.,  its  significance  for 
the  human  will.  Nor  did  I  find  anything  in  other  writers, 
whether  philosophers  or  jurists,  which  satisfied  me  in  this 
direction. 

I  found  myself  obliged  therefore  to  attack  the  prob- 
lem myself.  The  first  part  of  the  work  (The  Concept 
of  Purpose)  is  devoted  to  an  attempt  at  its  solution.  I 
had  originally  counted  on  a  volume  of  moderate  size 
for  the  two  parts  together.  But  in  the  course  of  working 
it  out,  the  first  part  alone  assumed  such  proportions  that 
I  had  to  think  of  a  separate  volume  of  good  size  for  it, 
and  I  was  not  even  able  to  keep  within  these  extended 
limits,  for  I  found  it  necessary,  from  external  considera- 


AUTHOR'S  PREFACE  Iv 

tions,  in  order,  namely,  not  to  let  the  first  volume  swell 
out  of  all  proportion  to  the  second,  to  assign  the  con- 
cluding chapters  of  the  first  part  to  the  second  volume, 
in  order  to  bring  about  an  external  equilibrium  of  the 
two  volumes. 

The  problem  of  the  first  part  placed  me  in  a  domain 
where  I  am  a  dilettante.  If  I  ever  deplored  the  fact  that 
the  period  of  my  development  came  at  a  time  when 
philosophy  was  in  discredit,  it  was  in  connection  with 
the  present  work.  What  the  young  man  missed  at  that 
time  by  reason  of  the  unfavorable  disposition  toward 
philosophy  that  then  prevailed,  could  no  longer  be  made 
up  by  the  man  of  mature  age.  If,  nevertheless,  I  was 
not  frightened  away  from  treating  a  philosophical  theme, 
it  was  because  I  hoped  that  the  knowledge  of  the  posi- 
tive juristic  material,  in  which  I  have  the  advantage 
over  the  professional  philosopher,  would  at  least  furnish 
him  with  data  which  may  be  useful  for  his  purposes. 
The  spell  under  which  philosophy  lay  at  the  time  of 
Hegel,  the  anathema  placed  on  anyone  who,  without 
being  trained  in  the  subject,  presumed  to  give  his  opinion 
on  philosophical  questions,  the  sovereign  contempt  with 
which  the  philosopher  of  the  Hegelian  school  looked 
down  upon  the  man  of  positive  science,  has  fortunately 
given  way  to  a  different  disposition.  Surely  not  to  the 
detriment  of  philosophy.  Philosophy  may  reject  or 
rectify  what  the  philosophical  naturalist  brings  to  light, 
but  his  attempt  to  philosophize  in  his  domain,  i.e.,  to 
search  out  universal  ideas,  is  hardly  altogether  devoid  of 
benefit  to  philosophy,  provided  only  the  man  brings  to 
his  task  the  necessary  knowledge  of  his  subject,  scien- 
tific earnestness  and  an  eye  for  the  universal.  And  I 
hope  that  this  will  prove  to  be  true  also  in  my  case. 

I  have  taken  care  not  to  economize  in  the  use  of  illus- 
trative material,  for  the  sake  of  the  philosopher  as  well 


Ivi  AUTHOR'S  PREFACE 

as  of  the  jurist.  I  made  use  of  every  opportunity  which 
presented  itself  to  me  of  placing  the  particular  in  the 
sers'ice  of  general  ideas.  For  the  sake  of  the  philosopher, 
in  order  to  bring  before  him  the  material ;  for  the  sake  of 
the  jurist,  in  order  to  present  to  him  the  general  idea  in 
the  material,  and  the  connection  of  the  particular  with 
the  whole.  I  have  endeavored  at  the  same  time  to 
present  the  purely  juristic  material  in  such  a  manner  as 
to  make  it  intelligible  to  the  educated  layman. 

I  must  be  prepared  for  readers  who  will  judge  the 
value  of  the  work  only  by  the  particular  views  contained 
in  it.  It  is  the  usual  standard  of  the  jurist  in  judging 
works  of  his  profession.  In  a  work  which,  like  the  present, 
pursues  no  practical  or  dogmatic  purpose,  but  takes  for 
its  task  the  presentation  of  the  whole  connection  of  law, 
such  judgment  would  show  the  lack  of  all  understanding 
for  the  meaning  of  the  problem.  Its  difficulty  lay  for 
me,  after  I  had  made  up  my  mind  regarding  my  funda- 
mental idea,  just  in  the  building  up  of  the  whole,  viz., 
in  the  discovery  of  the  right  connection,  how  one  thing 
is  joined  to  the  other,  in  the  logical  articulation  of  the 
individual  parts,  in  the  development  of  the  concept 
unbroken  by  any  leaps,  advancing  step  by  step  from  the 
simplest  to  the  higher.  Upon  this  systematic  or  dialectic 
element  I  expended  the  utmost  care,  and  I  have  for  this 
purpose  touched  upon  a  mass  of  points  and  questions 
in  strict  logical  progression  solely  in  order  to  denote  the 
point  where  they  enter  into  the  general  framework  of  the 
law. 

This  endeavor  after  strict  logical  articulation  is 
responsible  for  the  arrangement  of  the  chapters.  Every 
chapter  treats  a  topic  complete  in  itself.  This  explains 
the  very  unequal  length  of  the  chapters,  which  may 
seem  very  strange  to  one  who  sees  in  a  chapter  ending 
nothing  more  than  a  resting  point  to  take  breath.     Such 


AUTHOR'S  PREFACE  Ivii 

a  reader  may  lose  his  wind  in  my  seventh  and  eighth 
chapters.  But  he  will  find  his  chapters  there  also  in 
another  form,  namely  in  the  numbered  subdivisions  into 
which  these  chapters  are  divided.  They  denote  the 
articulations,  or  individual  branches  of  the  fundamental 
idea  to  which  these  two  chapters  (Reward  and  Coercion) 
are  devoted,  and  what  I  have  just  said  about  the  strictly 
progressive  development  of  the  concept  which  I  have 
proposed  to  myself  as  a  standard,  applies  here  with  special 
force. 

For  the  rest  I  refer  the  reader  to  the  book  itself.  There 
is  only  one  more  point  on  which  I  must  add  a  few  words. 
It  is  the  opposition  between  the  'law  of  causality'  and 
the  'law  of  purpose'  in  the  first  chapter.  No  philosopher 
of  the  present  day  will  admit  such  opposition,  and  very 
properly  so.  Only  one  of  two  things  is  possible.  Either 
cause  is  the  moving  force  of  the  world,  or  purpose.  In 
my  opinion  it  is  purpose.  Purpose  can  give  forth  the 
law  of  causality,  the  law  of  causality  cannot  give  forth 
purpose.  Or,  to  speak  more  plainly,  the  assumption 
of  a  purpose  in  the  world,  which,  since  I  am  simple  enough 
not  to  be  able  to  think  of  purpose  without  a  conscious 
will,  is  synonymous  in  my  mind  with  the  assumption 
of  a  God,  —  the  assumption,  I  say,  of  a  purpose  in  the 
world  posited  by  God,  or  of  a  divine  idea  of  purpose, 
is  quite  compatible,  in  my  opinion,  with  the  affirmation 
of  the  strictest  law  of  causahty.  Granted  that  the  latter 
works  just  as  the  extreme  Darwinists  teach,  crushing 
inexorably  what  cannot  maintain  itself  in  the  struggle 
of  existence,  beginning  with  the  Moneron  and  without 
any  further  creative  act  bringing  forth  everything  out 
of  itself,  progressing  from  one  step  to  the  other  up  to 
man  —  still,  when  I  set  a  boulder  in  motion  on  the  top 
of  the  mountain  in  order  that  it  may  drop  into  the  valley, 
was  it  not  purpose  which  first  set  the  law  of  causality 


Iviii  AUTHOR'S  PREFACE 

in  motion  in  the  stone?  If  cause  has  been  so  formed 
by  purpose  from  the  very  beginning  that  in  its  con- 
tinuous motion  it  produces  one  thing  out  of  the  other, 
and  finally  arrives  at  the  point  which  purpose  has  fore- 
seen and  willed,  is  it  purpose  or  cause  which  governs  the 
entire  motion?  When  the  statue  which  he  wants  to 
create  stands  before  the  mind  of  the  sculptor,  and  years 
glide  by  until  the  hand  completes  it  according  to  the 
laws  of  mechanics,  i.  e.,  according  to  the  law  of  causality, 
is  it  a  work  of  the  hand  or  of  the  mind?  I  do  think  it 
is  a  work  of  the  hand  in  the  service  of  the  mind.  I,  for 
my  part,  do  not  presume  any  judgment  on  the  correctness 
of  the  Darwinian  theory,  although  the  very  results  at 
which  I  personally  have  arrived  in  reference  to  the  his- 
torical development  of  law  confirm  it  to  the  fullest 
extent  in  my  sphere.  But  even  if  the  truth  of  the  theory 
were  as  firm  in  my  mind  as  a  rock,  I  do  not  see  how  it 
would  in  the  least  disturb  my  belief  in  a  divine  idea  of 
purpose.  In  the  Moneron,  which  according  to  Haeckel 
leads  with  necessity  to  man,  God  foresaw  man,  as  the 
sculptor  forsees  the  Apollo  in  the  marble,  or,  as  Leibnitz 
has  already  said,  "In  Adam  God  pre-formed  and  willed 
the  entire  human  race." 

The  assumption  of  a  two-fold  law  in  the  world  of 
phenomena,  of  the  law  of  causality  for  inanimate  creation 
and  the  law  of  purpose  for  animate,  is  not  in  the  least 
opposed  to  this  conception.  Both  find  their  unity  in  the 
law  of  purpose  as  the  highest  world-forming  principle. 
Matter  may  obey  the  one,  and  the  will  the  other;  both 
of  them,  each  in  its  own  manner  and  sphere,  simply  carry 
out  the  works  which  were  imposed  upon  them  from  the 
beginning  by  purpose.  One  legal  purpose  is  produced 
out  of  the  other  with  the  same  necessity  with  which, 
according  to  the  Darwinian  theory,  one  animal  species  is 
developed  from   the  other.     And   if  the  world  should 


AUTHOR'S  PREFACE  lix 

be  created  a  thousand  times  as  it  was  once  created,  — 
after  milliards  of  years  the  world  of  law  would  still  bear 
the  same  form;  for  purpose  has  the  same  irresistible 
force  for  the  creations  of  the  will  in  law  as  cause  has  for 
the  formation  of  matter.  Thousands  of  years  may 
elapse  before  this  compelling  force  of  purpose  becomes 
visible  in  a  particular  point  in  law  —  what  are  a  thousand 
years  in  comparison  with  milliards?  Law  obeys  this 
compulsion  willingly  or  unwillingly.  But  the  compulsion 
proceeds  step  by  step.  Law  knows  no  leaps  any  more 
than  nature,  the  antecedent  must  be  there  first  before 
the  higher  can  follow.  But  when  it  is  once  there, 
the  higher  is  unavoidable  —  every  antecedent  purpose 
produces  the  following  one,  and  from  the  sum  of  all 
particulars  is  produced  later,  through  conscious  or 
unconscious  abstraction,  the  universal  — the  legal  ideas, 
legal  intuition,  the  sense  of  justice.  It  is  not  the  sense 
of  right  that  has  produced  law,  but  it  is  law  that  has 
produced  the  sense  of  right.  Law  knows  only  one  source, 
and  that  is  the  practical  one  of  purpose. 

But  I  must  stop,  in  order  not  to  anticipate  the  dis- 
cussions which  must  be  reserved  for  the  second  part  of 
my  work.  What  has  already  been  said  will  suffice  to 
meet  the  attacks  to  which  my  distinction  between  the 
law  of  causality  and  the  law  of  purpose  may  be  exposed o 

DR.  RUDOLPH  VON  JHERING. 

GoTTiNGEN,  Dec.  6,  1877. 


Law  as  a  Means  to  an  End 


LAW  AS  A  MEANS  TO   AN    END 


PART  I 

THE  CONCEPT  OF  PURPOSE 


CHAPTER  I 
THE   LAW  OF   PURPOSE 

§  1.  CAUSE  AND  PURPOSE.  —  §  2.  PROBLEM  OF  THE  WILL 
IN  THE  LIVING  BEING.  —  §3.  THE  ANIMAL;  PSYCHOLOGI- 
CAL LEVER  OF  ITS  WILL;  INFLUENCE  OF  EXPERIENCE.  — 
§  4.  THE  CONCEPT  OF  LIFE.  —  §  5.  THE  VOLUNTARY  PRO- 
CESS IN  MAN:  I,  INNER  STAGE.  —  1.  PURPOSE;  2.  RELA- 
TION OF  PURPOSE  TO  ACTION;  3.  THE  LAW  OF  PURPOSE; 
4.  PURPOSE  IN  THE  FORM  OF  REASON;  HABITUAL  ACTION. 
—  II,  EXTERNAL  STAGE  IN  THE  VOLUNTARY  PROCESS; 
THE  LAW  OF  CAUSALITY. 

According  to  the  'Trinciple  of  Sufficient  Reason" 
nothing  ever  happens  of  itself  ("causa  sui"),  for  every- 
thing that  happens,  every  change  in  the  world  of  sense, 
is  the  consequence  of  another  antecedent  change,  with- 
out which  the  former  would  not  have  taken  place.  This 
fact,  postulated  by  our  thinking,  and  confirmed  by  experi- 
ence, we  designate,  as  is  well  known,  by  the  phrase,  the 
Law  of  Causality. 

§  1.  Cause  and  Purpose.  This  law  holds  also  for  the 
will.     Without  sufficient  reason  a  movement  of  the  will 


2  THE  CONCEPT  OF   PURPOSE         [Ch.  i 

is  as  unthinkable  as  a  movement  of  matter.  Freedom  of 
the  will,  in  the  sense  that  the  will  can  set  itself  in  motion 
spontaneously  without  a  compelling  reason,  is  the 
Miinchhausen  of  philosophy,  who  can  pull  himself  out 
of  a  swamp  by  his  own  hair. 

There  is  just  as  much  need,  therefore,  of  sufficient 
reason  for  the  will  as  in  the  processes  of  material  nature. 
But  in  the  latter  it  is  mechanical,  and  is  called  cause 
("causa  efficiens") ;  in  the  will  it  is  psychological,  and  we 
call  it  purpose  ("causa  finalis").  Thus,  the  stone  does 
not  fall  in  order  to  fall,  but  because  it  must  fall,  because 
its  support  is  taken  away ;  whilst  the  man  who  acts  does 
so,  not  because  of  anything,  but  in  order  to  attain  to 
something.  This  purpose  is  as  indispensable  for  the 
will  as  cause  is  for  the  stone.  As  there  can  be  no  motion 
of  the  stone  without  a  cause,  so  can  there  be  no  move- 
ment of  the  will  without  a  purpose.  In  the  former  case 
we  speak  of  the  mechanical  law  of  causality^  in  the  latter 
of  the  psychological.  I  shall  designate  the  latter  hence- 
forth as  the  Law  of  Purpose;  partly  for  the  sake  of 
brevity,  partly  to  indicate  in  the  very  name  that  purpose 
forms  the  only  psychological  reason  of  the  will.  The 
mechanical  law  of  causality,  therefore,  will  need  no  addi- 
tional description,  and  I  shall  henceforth  designate  it 
simply  as  the  Law  of  Causality. 

The  law  of  causality  may  now  be  restated :  There  can 
be  no  process  in  the  external  world  of  sense  without 
another  antecedent  process  which  has  effected  it,  or  in 
the  words  of  the  well-known  formula:  No  effect  without 
a  cause.  The  law  of  purpose  is:  no  volition,  or,  which  is 
the  same  thing,  no  action,  without  purpose. 

In  "Cause"  the  object  upon  which  the  effect  is  pro- 
duced is  passive.  The  object  appears  simply  as  a  single 
point  in  the  universe  at  which  the  law  of  causality  is  car- 
ried out  in  that  moment.     In  "Purpose,"  on  the  other 


§  2  1  THE  LAW  OF  PURPOSE  3 

hand,  the  thing  which  is  set  in  motion  by  it  appears  as 
self-active;  it  acts.  Cause  belongs  to  the  past,  purpose 
to  the  future.  External  nature,  when  questioned  regard- 
ing the  reason  of  its  processes,  directs  the  questioner  to 
look  back;  whilst  the  will  directs  him  forward.  The 
answer  of  the  one  is  "quia,"  of  the  other,  "ut."  To  be 
sure  this  does  not  mean  that  in  Purpose  the  process  of 
nature  is  reversed,  which  requires  the  determining  cause 
to  precede  the  thing  determined  by  it.  The  determining 
reason  belongs  here  also  to  the  present ;  the  determining 
cause  here  too  precedes  the  thing  determined  by  it; 
this  is  the  idea  (or  purpose),  which  existing  in  the  agent 
induces  him  to  act.  But  the  content  of  this  idea  is 
constituted  by  something  in  the  future  (that  which  the 
agent  wishes  to  attain),  and  in  this  sense  we  may  say 
that  in  volition  the  practical  motive  lies  in  the  future. 

§  2.  Problem  of  the  Will  in  the  Living  Being.  Where 
life  in  nature  develops  itself  into  soul,  there  too  begins 
that  provision  for  one's  own  life,  that  self-determination 
and  self-preservation  which  we  know  as  will  and  purpose. 
Every  living  being  is  so  constituted  as  to  be  its  own  keeper, 
the  guardian  and  preserver  of  itself,  and  nature  further 
has  provided  that  this  fact  shall  not  remain  hidden  from 
it,  and  that  the  living  being  shall  not  lack  the  necessary 
means  to  solve  his  own  problems  of  existence. 

Life  in  this  sense  begins  in  nature  with  the  lower  animal, 
and  at  the  same  point  also  begins  the  problem  of  the 
will.  Here,  low  in  the  scale  of  life,  where  with  the  will 
appears  also  for  the  first  time  the  indispensable  motive 
^—  purpose,  let  us  try  to  get  our  first  view  of  volition. 

The  dry  sponge  fills  itself  with  water;  the  thirsty 
animal  drinks.  Is  it  the  same  process?  Externally, 
yes;  internally,  no.  For  the  sponge  does  not  fill  itself 
in  order  to  do  so,  but  the  animal  does  drink  in  order  to 
quench  its  thirst.     Who  tells  us  this  is  so?     The  animal 


4  THE   CONCEPT   OF   PURPOSE         [Ch.  I 

itself.  A  well  trained  dog  will  not  drink  when  his 
master  forbids  him.  How  is  this?  Because  over  against 
the  idea  of  the  water  which  he  knows  can  quench  his 
thirst,  there  presents  itself  to  him  the  idea  of  the  beating 
which  he  receives  when  he  drinks  against  his  master's 
orders,  —  an  idea  evoked  by  no  present  sensible  impres- 
sion, but  coming  rather  as  a  result  of  memory.  The 
idea  of  the  blows  does  not  remove  for  the  dog  the  dry- 
ness of  his  palate  and  that  sensible  condition  of  his 
thirst  which  is  called  forth  thereby.  A  fact  cannot  be 
removed  by  an  idea;  but  an  idea  may  and  does  attack 
that  which  is  similar  to  it,  viz.,  another  idea,  and  will 
subdue  it  when  it  is  stronger.  But  if  the  overcoming  of 
the  incitement  to  drink  be  in  this  case  (since  it  rests 
upon  the  co-operation  of  the  memory)  a  psychological 
process,  and  not  a  mechanical  one,  the  incitement  itself, 
whether  the  animal  resists  or  yields,  is  a  psychological 
act.      > 

§  3.  The  Animal;  Psychological  Lever  of  its  Will;  Influ- 
ence of  Experience.  The  physical  condition  of  the  dry- 
ness of  the  palate  does  not  therefore  as  such  bring  about 
the  drinking,  it  does  this  solely  by  changing  the  physical 
and  mechanical  pressure  into  a  psychological.  This 
process  therefore  does  not  come  under  the  law  of  cau- 
sality, but  under  that  of  purpose.  The  animal  drinks  in 
order  to  quench  its  thirst;  it  forbears  in  order  not  to 
receive  blows.  In  both  cases  it  is  the  idea  of  something 
in  the  future  which  impels  the  animal  to  its  conduct. 

In  another  way  also  we  may  convince  ourselves  of 
the  correctness  of  our  position.  For  whether  we  dip 
the  sponge  in  water  or  in  sulphuric  acid  or  in  anything 
else,  it  always  fills  itself,  even  though  the  fluid  destroy 
it.  Whereas  the  animal,  though  taking  the  water,  will 
reject  the  sulphuric  acid.  Why?  Because  it  feels  that 
the  sulphuric  acid  is  fatal  to  it.     The  animal  therefore, 


541  THE  LAW  OF  PURPOSE  5 

distinguishes  between  that  which  is  beneficial  to  its 
existence  and  that  which  is  injurious;  it  discriminates 
before  it  decides  and  makes  use  of  former  experiences. 
Right  action  for  the  animal  is  by  no  means  indicated  in 
instinct  alone ;  for  there  is  hereditary  experience  to  guide 
him;  the  animal  is  directed  by  the  experience  of  the 
species  as  well  as  by  that  of  his  individual  self.  The 
understanding  of  height  and  depth  and  the  estimate  of 
distance  by  the  eye,  his  judgment  of  the  degrees  of  heat 
of  food  and  drink  which  is  beneficial  or  injurious  and  so 
on,  must  be  learned  by  the  young  dog  and  cat  by  way 
of  falling  down  some  step  and  burning  his  muzzle;  the 
animal  too  must  gain  sense  through  pain.  A  stick  may 
fall  a  thousand  times,  and  it  always  falls  again;  because 
for  the  stick,  there  is  no  experience.  But  a  dog  which 
has  once  been  deceiAed  by  a  trap  in  the  shape  of  a  loaf 
of  bread  or  a  stone  is  thereafter  made  the  wiser.  For 
the  animal,  therefore,  experience  is  a  factor;  thememor>^ 
of  what  was  pleasant  or  unpleasant,  beneficial  or  injuri- 
ous exists  for  it,  and  the  practical  ability  to  turn  to 
account  such  impressions  for  future  use ;  hence  the  reali- 
zation of  purpose. 

§  4.  The  Concept  of  Life.  With  this  is  most  closely 
connected  the  concept  of  animal  life.  Consciousness 
alone  is  not  yet  life.  If  the  faculty  of  thought  were 
granted  the  stone,  it  would  remain  a  stone;  the  figures 
of  the  external  world  would  merely  be  reflected  in  it  as 
the  moon  is  reflected  in  the  water.  Even  the  richest 
knowledge  is  not  life;  a  book  in  which  the  secret  of  the 
whole  world  were  revealed,  though  it  became  conscious 
of  itself,  would  still  remain  a  book.  Neither  is  sensation 
life  any  more  than  is  knowledge.  If  the  plant  felt  an 
injury  done  it  as  painfully  as  the  animal,  it  would  not 
yet  thereby  be  like  the  latter.  Animal  life,  as  nature 
has  actually  thought  and  formed  it,  is  the  maintenance 


6  THE   CONCEPT  OF   PURPOSE         [Ch.  I 

0/  existence  with  ones  own  power  ("volo,"  not  "cogito, 
ergo  sum");  life  is  the  practical  application,  byway  of 
purpose,  of  the  external  world  to  one's  own  existence.  The 
entire  equipment  of  the  living  being:  sensation,  under- 
standing, memory,  has  meaning  only  as  a  protection 
thereof.  Understanding  and  sensation  alone  would  not 
be  able  to  effect  this  if  it  were  not  for  the  addition  of 
memory.  It  is  memory  that  gathers  together  and  secures 
in  experience  the  fruit  of  these  two,  in  order  to  apply 
such  experience  to  the  purposes  of  existence. 

The  will  is  no  more  dependent  upon  self-consciousness 
than  is  Hfe ;  and  he  who  has  the  sense  of  the  inner  con- 
nection existing  between  the  two  will  justly  regard  as 
superficial  and  prejudiced  that  view  of  the  animal  which 
would  deny  its  purposing  power  the  name  of  will  because 
of  a  defective  self-consciousness  which  is  less  complete 
than  man's  own.  This  low  view  of  animal  volition  is 
by  no  means  the  profound  thing  it  professes  to  be. 

The  essential  characteristics  of  the  human  will  (with 
the  exception  of  self-consciousness,  which  in  man  also 
may  be  wanting  or  pass  out  of  function  permanently  or 
temporarily),  are  found,  as  we  shall  see  later,  also  in  the 
animal.  And  even  the  animal's  faculty  of  thinking, 
which  is  presupposed  in  its  power  to  will,  is  incomparably 
higher  than  at  first  sight  it  has  the  appearance  of  being. 
It  is  so  easy  to  say,  the  idea  of  a  future  event  impels  the 
animal  to  action.  And  yet  how  much  is  involved  in 
this!  The  idea  of  the  future  means  an  idea  subsumed 
under  the  category  of  possibility.  The  animal,  there- 
fore, in  comparing  this  idea  with  that  of  the  present 
state,  proves  its  ability  practically  to  employ  the  two 
categories  of  the  actual  and  the  possible.  Similarly  it 
makes  use  of  the  categories  of  purpose  and  of  means.  It 
would  not  at  all  be  thinkable  that  it  should  will  if  its 
understanding  did  not  control  them.     I,  for  my  part, 


§6]  THE  LAW  OF  PURPOSE  7 

am  so  farfrom  looking  down  contemptuously  upon  the 
will  of  the  animal,  that  on  the  contrary  I  regard  it  as 
worthy  of  the  highest  respect,  and  in  the  following 
chapter  I  shall  make  the  attempt  to  derive  from  it  the 
scheme  of  purpose  in  general. 

§  5.  The  Voluntary  Process  in  Man.  Our  discussion 
hitherto  has  shown  us  that  purpose  is  the  idea  of  a 
future  event  which  the  will  essays  to  realize.  This  con- 
cept of  purpose,  which  by  no  means  exhausts  the  essence 
of  the  latter,  must  sufifice  for  the  present  until  the  progress 
of  our  investigation  has  put  us  in  a  position  to  replace 
it  by  one  that  is  completely  adequate.  We  shall  operate 
with  it  in  what  follows,  as  the  mathematician  operates 
with  X,  in  dealing  with  an  unknown  quantity. 

Turning  now  to  the  human  will,  let  us  confine  our  task 
in  this  chapter  merely  to  the  proof  of  the  law  of  purpose, 
or  the  principle:  no  volition  without  purpose.  The  nega- 
tive form  of  this  expression  is:  volition,  the  inner  process 
of  the  formation  of  the  will,  does  not  come  under  the 
law  of  causality;  its  efficient  reason  is  not  cause  but  pur- 
pose. But  the  realization  of  the  will,  its  emergence  into 
the  world  of  sense,  does  come  under  the  law  of  causality. 
The  former  is  the  internal  stage  of  the  will,  the  latter 
the  external. 

I.  Internal  Stage:  1.  Purpose.  The  internal  stage 
begins  with  an  act  of  the  faculty  of  ideation  (representa- 
tion). There  emerges  in  the  soul  a  picture,  an  idea 
(representation)  of  a  future  possible  state,  which  promises 
the  subject  a  greater  satisfaction  than  the  state  in  which 
he  finds  himself  at  the  moment.  The  reason  why  the 
idea  emerges  lies  partly  in  the  subject  himself,  in  his 
individuality,  his  character,  his  principles,  his  view  of 
life;  partly  in  external  influences.  That  in  the  soul  of 
the  criminal  there  emerges  the  thought  of  a  wicked  deed 
—  this  presupposes  the  man  himself  with  his  criminal 


8  THE   CONCEPT   OF   PURPOSE         [Ch.  I 

nature;  in  the  soul  of  the  good  man  such  a  thought 
does  not  arise.  The  same  holds  of  the  idea  of  a  good 
deed  which  arises  in  the  soul  of  the  latter ;  it  would  not 
have  been  possible  in  the  former.  Thus,  the  possi- 
bility of  the  first  impulse  to  a  deed  is  conditioned  by  the 
given  individuality  of  the  subject,  in  whom  lies  the  ulti- 
mate reason  for  the  impulse.  The  external  influences, 
on  the  other  hand,  give  only  the  impulse  to  the  deed, 
the  occasion  for  its  performance.  They  indicate  to  us 
the  point  at  which  the  law  of  causality  is  able  to  exercise 
an  influence  on  the  formation  of  the  will,  but  they 
indicate  at  the  same  time  also  the  limit  of  this  influence. 
For  as  was  shown  above  (p.  4)  in  our  discussion  of  the 
voluntary  process  in  the  animal,  these  external  influ- 
ences have  no  direct  power  over  the  will;  they  acquire 
such  only  by  being  converted  into  ps>xhoIogical  motives, 
and  not  until  they  are  thus  converted.  Whether  they 
can  do  this  depends  upon  the  measure  of  resistance 
which  they  find  within  the  subject. 

The  idea  of  the  future  state  is  distinguished  from  other 
ideas  in  being  practical  in  its  nature.  It  contains  within 
itself  a  challenge  to  action,  it  is  a  prefiguring  of  the  deed, 
presented  before  the  will  by  the  faculties  of  ideation  and 
desire.  The  acceptance  of  the  presentation  depends 
upon  the  preponderance  of  the  reasons  for  the  deed 
over  the  reasons  against  it.  Without  such  a  preponder- 
ance the  will  can  no  more  be  set  in  motion  than  the 
balance  can  move  when  there  is  an  equal  weight  in  both 
scales  —  it  is  like  the  case  of  the  well-known  ass  of 
Buridan  between  the  two  bundles  of  hay.  The  decision 
shows  that  in  the  judgment  of  the  agent  the  preponder- 
ance was  there;  every  decision  ("Entschluss")  is  preceded 
by  an  antecedent  balancing  ("Schliessen"),t.  e.,  a  trying, 
which  is  brought  to  an  end  by  the  decision  ("Entschluss") . 

2.     Relation  of   Purpose  to  Action.     The  satisfaction 


5  5 1"  THE  LAW  OF  PURPOSE  9 

which  the  person  who  wills  promises  himself  from  the 
act  forms  the  purpose  of  his  volition.  The  act  itself  is 
never  the  purpose,  but  only  a  means  to  the  purpose. 
Whoever  drinks  wants  indeed  to  drink,  but  he  wants  it 
only  for  the  sake  of  the  consequence  which  it  has  for  him ; 
in  other  words,  in  every  act,  it  is  never  the  act  itself  we 
want,  but  only  its  effect  upon  us.  This  means  in  other 
words:  in  our  action  we  want  only  the  purpose.  It 
might  be  objected  that  my  statement  in  the  above 
example  is  true  only  when  one  drinks  because  he  is 
thirsty.  In  that  case,  to  be  sure,  he  is  not  concerned 
about  drinking  but  only  about  quenching  his  thirst. 
But  the  statement  is  not  true,  it  will  be  said,  when  he 
drinks  for  the  sake  of  enjoyment,  for  then  drinking  is  a 
purpose,  not  a  means.  When  the  latter  affords  him 
no  enjoyment,  for  example  if  the  wine  be  spoiled  or  is 
tasteless,  he  leaves  off  drinking.  The  illusion  that  the 
act  itself  might  be  the  purpose  has  its  explanation  only 
in  the  circumstance  that  the  latter  may  be  connected  with 
it  in  a  two-fold  manner.  The  purpose  may  be  directed 
either  upon  the  effect  which  the  action  produces  during 
the  act  of  its  undertaking,  or  upon  the  effect  which  it  pro- 
duces after  the  termination  of  the  act.  Whoever  drinks 
water  because  he  is  thirsty,  or  takes  a  business  trip,  is 
concerned  with  that  which  lies  beyond  the  drinking  or 
beyond  the  trip.  But  if  a  person  drinks  wine  for  the  sake 
of  the  enjoyment,  or  takes  a  pleasure  trip,  he  intends  that 
which  lies  in  the  action.  That  the  purpose  may  extend 
equally  to  both  negds  not  to  be  mentioned. 

3.  The  Law  of  Purpose.  But  however  the  purpose 
may  be  combined  with  the  act,  and  whatever  the  nature 
of  the  purpose  may  be,  without  a  purpose  action  is 
unthinkable.  Acting,  and  acting  with  a  purpose,  are 
synonymous.  An  act  without  a  purpose  is  just  as  much 
an  impossibility  as  is  an  effect  without  a  cause. 


10  THE   CONCEPT  OF   PURPOSE         [Ch.  I 

We  have  now  arrived  at  the  point  which  we  laid  down 
above  to  be  proved,  viz.,  the  existence  of  the  law  of  pur- 
pose. It  deserves  the  name  of  a  law  only  if  its  realiza- 
tion is  absolutely  necessary,  and  the  possibiHty  of  a 
deviation  or  exception  unthinkable;  otherwise  it  is  a 
rule,  not  a  law.  Has  it  really  a  claim  to  that  name? 
So  far  as  I  see,  this  can  be  denied  only  on  two  grounds. 
The  first  is  that  we  act  not  only  with  a  purpose,  but  also 
for  a  reason,  for  example,  because  we  are  compelled, 
because  duty  or  the  law  of  the  State  demands  it.  The 
second  is  that  there  is  also  completely  unconscious  and 
purposeless  action,  for  example,  the  action  of  the  insane, 
or  action  which  has  become  habitual  to  such  a  degree 
that  we  no  longer  think  anything  in  the  doing  of  it. 

4.  Purpose  in  the  Form  of  Reason.  The  first  objec- 
tion seems  to  be  unanswerable.  For  if  it  were  groundless, 
we  should  have  to  make  use  of  the  particles,  in  order 
to,  that,  in  order  that  ("ut").  which  express  purpose,  in 
assigning  the  motive  of  an  action,  and  not  of  the  particle, 
because  ("quia"),  which  expresses  reason.  The  linguistic 
usage,  however,  of  all  nations  employs  both  particles 
equally. 

Let  us  try  to  see  what  the  actual  truth  is  about  the 
particle  "because."  If  one  says,  "I  drink  because  I  am 
thirsty,"  his  statement  is  quite  intelligible  to  everyone. 
If  he  were  to  say,  "because  it  rained  yesterday,"  no  one 
would  understand  him.  Why  not?  Because  there  is 
no  visible  connection  between  the  reason  assigned  and 
the  drinking.  Such  a  connection,  however,  is  established 
through  the  particle  "because,"  only  where  the  phrase 
"in  order  to"  is  concealed  behind  it.  The  reason  in 
action  is  only  another  form  of  expressing  puj'pose;  where 
this  is  not  the  case  there  is  no  action,  but  an  event. 
"He  leaped  from  the  tower  because  he  wanted  to  com- 
mit suicide"  —  here  the  term   "because"   signifies   "in 


§  5]  THE  LAW  OF  PURPOSE  11 

order  to."  "He  lost  his  life  because  he  fell  from  the 
tower"  —  here  the  particle  really  does  signify  "because." 
In  the  former  case  there  was  an  act,  here  an  event. 

But  why  do  we  use  the  term  "because"  instead  of  "in 
order  to"?  We  do  it  preferably  in  those  cases  where  the 
agent  did  not  possess  full  freedom  of  resolution,  but  where 
there  was  some  sort  of  a  constraint,  whether  physical, 
legal,  moral,  or  social.  Where  this  is  not  the  case,  we 
either  simply  communicate  the  fact,  if  there  can  be  no 
doubt  about  the  purpose;  or  where  more  than  one  pur- 
pose may  be  thought  of,  we  also  indicate  the  purpose  in 
order  to  assign  a  motive  for  the  fact.  A  person  is  not 
apt  to  say  that  he  has  given  his  children  Christmas 
presents  in  order  to  afford  them  joy,  or  that  he  has  bought 
a  house  in  order  to  live  in  it.  But  if  a  person  has  bought 
a  house  to  tear  it  down,  to  let  it,  or  to  sell  it  again,  he 
will,  if  he  wants  to  assign  a  motive,  add  the  purpose. 

Let  us  see  now  whether  the  above  statement  will 
stand  the  test.  Let  us  first  take  the  case  of  physical 
compulsion.  Where  the  robber  deprives  his  victim  vio- 
lently of  his  watch  and  his  purse,  there  is  no  action  at  all 
on  the  part  of  the  victim,  but  only  on  the  part  of  the 
robber.  But  the  threats  of  the  robber  determine  the 
person  threatened  to  give  up  his  watch  and  his  purse. 
The  latter  acts,  even  though  under  the  influence  of 
(psychological)  compulsion.  Does  he  act  here  for  a  rea- 
son or  with  a  purpose?  Doubtless  the  latter.  He  gives 
his  watch  and  his  purse  in  order  to  save  his  life.  His 
life  is  worth  more  to  him  than  his  watch,  and  he  sacri- 
fices the  less  valuable  in  order  to  retain  the  more  valu- 
able. Hie  may  possibly  believe  that  submission  were  a 
disgrace  to  his  honor  and  so  undertake  a  fight  with  the 
robber.  Here  too  it  is  a  purpose  which  is  held  in  view. 
That  in  this  case  there  is  an  actual  act  of  the  will,  and 
not  merely  the  outward  appearance  of  such,  the  Roman 


12  THE   CONCEPT   OF   PURPOSE         [Cu.  I 

jurists  with  their  keen  understanding  have  rightly  recog- 
nized,' and  it  is  hard  to  comprehend  that  there  still  are 
those  among  our  jurists  of  today  for  whom  this  truth 
has  been  discovered  in  vain.  For  if  any  one  should  have 
an  open  eye  for  this  truth,  it  is  the  jurist,  to  whom,  if  he 
deserve  this  name,  a  practical  understanding  should  tell 
where  it  would  lead  to  if  we  should  deny  in  case  of  co- 
ercion the  presence  of  will.  In  that  case  every  one  would 
be  unfree  who  yielded  to  external  influences  in  making 
his  decision.  The  jailer  who,  softened  by  the  tears  and 
entreaties  of  relatives,  allows  the  criminal,  condemned  to 
death,  to  escape,  is  unfree.  The  cashier  laying  hands 
on  the  safe  in  order  to  furnish  bread  to  his  hungry  chil- 
dren, is  unfree.  Where  would  be  the  limit?  If  the 
drow^ning  person  who  promises  his  fortune  for  the  rope 
that  is  thrown  to  him  can  repudiate  his  promise  on  the 
ground  that  it  was  forced  from  him  only  through  the 
condition  of  constraint  in  which  he  found  himself,  why 
not  also  the  traveller,  who  is  forced  on  the  journey  to 
submit  to  higher  prices  than  the  native,  or  than  he  him- 
self would  have  paid  at  home?  Casuistry  can  easily 
put  together  an  entire  chain  of  such  cases  with  gradually 
rising  or  diminishing  constraint,  and  bid  us  tell  at  what 
particular  link  of  the  chain  constraint  ceases  and  free- 
dom begins.  The  law  may  in  many  such  cases  deny 
the  juristic  validity  of  an  action,  as  the  Roman  law  has 
done  w'here  coercion  exceeds  the  measure  of  the  ordinary 
resisting  power  of  man  ("metus  non  vani  hominis,  sed 
cjui  merito  et  in  hominem  constantissimum  cadat," 
4.2.  6).  But  this  is  without  significance  for  the  question 
as  to  whether  we  are  to  assume  an  act  of  will,  for  this 
question  does  not  at  all  come  before  the  forum  of  the 


1  In  two  words  Pauhn,  in  Dig.  4.  2.  21,   §  5,  hits  the  nail  on  the 
head:   "coactus  volui"  —  I  willed  because  I  was  compelled. 


§  5  i  THE  LAW  OF  PURPOSE  13 

law,"  it  belongs  to  psychology.  The  law  also  declares 
immoral  contracts  void,  but  it  has  not  yet  occurred  to 
any  one  to  deny  them  for  that  reason  the  character  of 
voluntary  acts.  The  State  also  coerces  us  by  its  laws  — 
are  our  actions  then  not  free  because  we  follow  the  laws? 
The  question  leads  us  to  another  instance  in  which 
cause  seems  to  exclude  purpose.  The  debtor  pays  his 
debt.  Why?  Who  would  not  be  inclined  to  answer, 
because  he  owes  it?  But  here,  too,  a  disguised  "in  order 
to"  lurks  behind  the  term  "because."  The  debtor  pays  in 
order  to  free  himself  from  his  debt.  If  this  can  be  done 
in  another  way,  or  if  the  circumstances  are  such  that  the 
external  act  of  payment  is  juristically  inadequate  to  the 
purpose,  he  does  not  pay.  He  who  sees  the  determining 
reason  of  the  payment  in  the  pressure  of  the  debt,  might 
just  as  well,  in  the  case  of  the  prisoner  who  throws  off 
his  chains,  call  the  chains  the  reason  of  the  act.  If  the 
prisoner  had  not  felt  the  desire  for  freedom,  he  would 
not  at  all  have  taken  advantage  of  the  opportunity  to 
get  rid  of  his  chains.  The  same  is  true  of  the  debt.  He 
who  is  not  pressed  by  it  does  not  pay,  and  he  who  pays 
does  not  do  it  because  of  the  debt,  i.e.,  because  of  a  fact 
in  the  past,  but  on  account  of  the  future,  namely,  a  pur- 
pose, in  order  to  remain  an  honest  man,  in  order  not  to 
endanger  his  credit  or  reputation,  in  order  not  to  expose 
himself  to  a  legal  action.  If  we  are  not  always  conscious 
of  these  special  purposes  in  our  payments,  this  is  a  matter 
to  be  referred  to  the  chapter  on  purpose  in  habitual 
action  (see  below) .     Obedience  to  the  laws  is  to  most  men 

^  In  this  relation  is  applicable  what  Gains  says,  III,  194:  "Neque 
enim  lex  facere  potest,  ut  qui  manifestus  fur  non  sit,  manifestus  sit, 
non  magis,  quam  qui  omnino  fur  non  sit,  fur  sit  et  qui  adulter  aut 
homicida  non  sit,  adulter  vcl  homicida  sit.  At  illud  sane  lex  facere 
potest,  ut  perinde  aliquis  poena  teneatur  atqui  si  furtum  vel  adul- 
terium  vel  homicidium  admisisset,  quamvis  nihil  eorum  admiserit." 


14  THE   CONCEPT   OF   PURPOSE         [Cii.  I 

a  matter  of  habit,  without  any  reflection.  They  get,  as 
a  rule,  no  clear  notion  of  the  why  and  the  wherefore 
until  they  get  into  temptation  to  transgress  the  law,  and 
then  they  discover  after  careful  self-examination  the 
purpose  behind  every  "why." 

The  same  is  true  of  the  performance  of  ethical 
duties  as  of  legal  obligations.  When  I  give  alms  to  a 
poor  man,  it  is  not  because  he  is  poor,  but  in  order  that 
I  may  help  a  person  in  need.  The  signification  of  the 
particle  "because"  is  merely  to  call  forth  the  term  "in 
order  that." 

The  above  deduction,  which  aims  essentially  at  the 
idea  that  every  reason  may  be  converted  into  a  purpose, 
might  be  objected  to  on  the  ground  that  the  contrary 
is  just  as  possible.  Instead  of  saying:  I  buy  a  house i« 
order  to  live  in  it,  I  need  only  change  my  expression  and 
say,  because  I  have  need  of  it  to  live  in.  The  objection 
would  be  well  founded  if  I  had  in  mind  the  possibility 
of  a  different  form  of  expression  in  language.  My  mean- 
ing, however,  is  not  chat  every  reason  may  be  expressed 
in  language  as  purpose,  but  that  it  really  is  a  purpose. 
In  the  phrase,  "have  need  of,"  the  purpose  concealed  in 
language  comes  to  view  again,  and  so  in  all  other  cases. 

The  second  objection  stated  above  (p.  10)  to  the 
absolute  necessity  of  a  purpose,  was  the  possibility  of 
unconscious  and  purposeless  action.  The  objection  was 
answered  even  before  it  was  raised  by  the  proof  given 
above  (p.  6)  in  the  case  of  the  animal,  that  there  is  no 
need  of  consciousness  in  volition  and  hence  not  in  purpose. 
The  insane  person  also  acts  (so  far  as  his  doings  may  lay 
claim  to  this  name),  not  without  purpose.  His  actions 
are  distinguished  from  those  of  the  rational  person,  not 
by  the  want  of  purpose,  but  by  the  peculiarity  and 
abnormity  of  the  purpose;  and  I  might  assert  that  the 
last  remnant  of  his  human  quality  as  compared  with 


§  5  ]  THE  lAW  OF  PURPOSE  15 

animality  appears  in  this  very  fact  that  he  sets  himself 
purposes  which  go  beyond  the  purely  animal  Hfe,  and 
of  which  the  animal  would  therefore  not  at  all  be  capable 
—  in  the  caricature  the  man  in  him  is  still  recognizable. 

Even  habitual  action,  in  which  we  no  longer  do  con- 
scious thinking  at  all,  is  still  purposeful  action.  Habitual 
action  represents  in  the  life  of  the  individual  the  same 
phenomenon  as  morality  and  customary  law  do  in  the 
life  of  a  people.  In  both,  the  individual  as  well  as  the 
people,  a  more  or  less  clearly  conscious  or  felt  purpose 
originally  called  forth  the  action,  but  the  frequent  repe- 
tition of  the  same  action  from  the  same  motives  and  with 
the  same  purpose,  has  bound  together  purpose  and  action 
to  such  a  degree  that  the  purpose  has  ceased  to  be  a  con- 
sciously perceptible  element  of  the  voluntary  process. 

My  development  of  the  law  of  purpose  is  now  con- 
cluded, and  as  a  result  we  carry  away  with  us  the 
principle,  that  volition  and  volition  with  a  purpose  are 
synonymous  terms,  and  there  are  no  purposeless  actions. 
Although  language  makes  use  of  this  expression,  it  does 
not  denote  the  absence  of  purpose  in  general,  but  of 
intelligent  purpose.  I  name  as  an  example  the  torture 
of  animals.  It  is  objectively  purposeless,  i.e.,^  not  de- 
manded by  any  purpose  in  life;  subjectively,  however, 
it  is  not  purposeless,  for  the  torturer  has  a  purpose, 
namely,  to  feast  on  the  torments  of  the  animal.  Opposed 
to  purposeless  action,  which  takes  the  wrong  purpose, 
is  inappropriate  action,  which  selects  the  wrong  means. 

II.  External  Stage  in  the  Voluntary  Process:  the 
Law  of  Causality.  The  internal  stage  of  an  action  ends 
with  the  resolution,  the  act  by  which  the  will  relieves 
itself  of  further  balancing,  and  puts  an  end  to  the  state 
of  irresolution.  Next  in  order  comes  the  performance  of 
the  resolution  —  the  deed.  By  means  of  the  deed  the 
will  enters  the  kingdom  of  the  external  world,  and  comes 


10  THE   CONCEPT   OF   PURPOSE        [  Ch.  i 

under  the  rule  of  its  laws.  In  place  of  the  law  of  purpose, 
the  will  is  now  subject  to  the  law  of  causality  —  not 
merely  in  the  negative  sense  that  it  can  do  nothing 
against  this  law,  but  also  in  the  positive  sense  that  it 
needs  the  co-operation  of  the  latter  to  realize  itself. 
He  who  throws  himself  down  from  a  tower  in  order  to 
commit  suicide  transfers  the  carrying  out  of  his  resolu- 
tion to  the  law  of  gravity.  And  if  it  is  only  a  word  that 
he  has  to  speak,  merely  the  word  "y^s,"  at  the  altar  by 
which  he  enters  into  marriage,  he  counts  upon  the  vibra- 
tions of  the  air  carrying  the  sound  to  the  ear  of  the  other 
person.  In  short,  every  action,  whatever  its  content, 
requires  the  co-operation  of  natural  laws.  Therefore 
the  success  of  every  action  is  conditioned  by  the  right 
knowledge  and  application  of  these  laws  ("naturae  non 
imperatur  nisi  parendo").  If  the  bullet  falls  to  the 
ground  before  it  reaches  the  goal,  this  fact  proves  that 
the  person  shooting  took  less  powder  than  nature  de- 
manded to  carry  the  bullet  to  the  goal.  In  every  action 
we  have  nature  by  our  side  as  a  servant,  who  carries  out 
all  our  orders  without  refusal,  provided  these  have  been 
given  in  the  right  manner. 

This  external  action  of  the  will  is  apparently  identical 
with  other  processes  of  nature.  Whether  the  stone  falls 
from  the  roof,  or  a  person  throws  it  down,  whether  the 
word  or  the  thunder  sets  the  sound  waves  of  the  air  in 
motion,  seems  to  be  quite  the  same  from  the  stand- 
point of  nature.  In  reality,  however,  it  is  quite  different. 
The  falling  of  the  stone  and  the  rolling  of  the  thunder 
are  efTected  by  nature  itself,  by  means  of  antecedent 
causes.  The  throwing  of  the  stone  and  the  speaking  of 
the  word,  on  the  contrary,  are  acts  in  which  nature  has 
no  part,  a  force  enters  her  dominion  over  which  she  has 
no  power,  —  the  human  will.  The  human  will  denotes 
the  limit  of  her  empire;  where  its  dominion  begins,  hers 


§5]  THE  LAW  OF  PURPOSE  17 

ceases.  Cause  and  effect,  which  follow  each  other  in  the 
world  of  sense  like  waves  in  endless  succession,  break 
against  every  human  will.  Over  the  latter  the  law  of 
causality  has  no  power,  but  only  the  law  of  purpose. 
The  will  is  free  in  relation  to  nature;  it  obeys  not  her 
law  but  its  own.  But  whereas  nature  has  no  power  over 
the  will,  the  latter  has  power  over  nature;  she  must 
''iJbey  the  will  whenever  it  so  desires  —  every  human  will 
is  a  source  of  causality  for  the  external  world.  Thus 
the  will  may  be  designated  as  the  end  and  beginning  of 
the  movement  of  causality  in  nature  ■ —  will  means  the 
maintenance  of  one's  own  causality  over  against  the  exter- 
nal world. 

This  independence  of  the  will  on  the  law  of  causality, 
or  its  freedom  in  relation  to  the  external  world,  does  not 
mean,  however,  that  the  will  can  withdraw  into  itself  as 
into  a  strong  fortress,  which  will  protect  it  against  all 
assaults  from  without.  The  external  world  knows  its 
hiding  place  and  often  knocks  at  the  gate  with  rude  hand, 
asking  for  admittance,  —  nature  with  hunger  and  thirst, 
man  with  threats  and  violence.  But  if  the  will  itself 
does  not  open  the  gate,  the  besieger  cannot  come  in, 
and  if  a  strong  will  guards  the  fortress,  then  the  whole 
world  may  storm  it,  without  accomplishing  anything. 
There  are  no  terrors  and  tortures  which  man  has  not 
applied  to  bend  the  will;  but  the  moral  power  of  con- 
viction, the  heroism  of  duty,  of  personal  love,  of  religious 
faith,  of  love  of  country,  have  defied  them  all — the 
witnesses  in  blood  of  the  inflexible  strength  of  the  will 
are  numbered  in  millions.  To  be  sure  the  witnesses  of 
the  weakness  of  the  human  will  are  numbered  in  mil- 
liards, but  they  do  not  refute  our  statement,  for  we  did 
not  mean  to  say  that  external  influences  cannot  affect 
the  will  mediately  (by  means  of  psychological  pressure, 
p.  2),   but  that  they  have  no  direct  (mechanical)  power 


18  THE   CONCEPT   OF   PURPOSE         [Ch.  I 

over  it,  or,  which  is  the  same  thing,  that  the  will  is  not 
under  the  law  of  causaHty,  but  under  the  law  of  purpose. 

Therefore  the  will  is  the  truly  creative  force  in  the 
world,  i.e.,  the  force  which  produces  out  of  itself.  It 
does  so  primarily  in  God,  and  by  way  of  imitation  also 
in  man. 

The  lever  of  this  force  is  purpose.  In  purpose  is  con- 
cealed man,  humanity,  history.  In  the  two  particles 
"quia"  and  "ut"  is  reflected  the  opposition  of  two  worlds: 
"quia"  is  nature,  "ut"  is  man.  In  this  "ut"  he  has  the 
whole  world  in  reversion,  for  "ut"  signifies  the  possibility 
which  exists  of  establishing  a  relation  of  purpose  between 
the  external  world  and  the  ego,  and  to  this  relation  there 
are  no  bounds  set  either  by  the  ego  or  the  external  world. 
With  "ut"  God  gave  man  the  whole  earth,  as  the  Mosaic 
story  of  creation  (Genesis  I,  26,  28)  makes  God  himself 
announce  it. 


§  1]'  CONCEPT  OF  PURPOSE  IN  ANIMALS       19 


CHAPTER  II 

THE  CONCEPT  OF  PURPOSE  IN  ANIMALS  AS 
POINT  OF  DEPARTURE  FOR  THE  PROB- 
LEM OF  PURPOSE   IN   MAN 

§  1.  THE  MECHANISM  OF  THE  ANIMAL  WILL.  —  §  2.  SELF- 
RELATION  IN  PURPOSE.  —  §  3.  REALIZATION  OF  THE  CON- 
DITIONS OF  EXISTENCE  THROUGH  THE  WILL. 

In  the  preceding  chapter  we  have  arrived  at  the  result: 
no  volition  without  purpose;  but  we  do  not  yet  know 
what  purpose  is,  for  the  concept  with  which  we  satisfied 
ourselves  for  the  moment,  viz.,  the  direction  of  the  will 
toward  a  future  state  which  it  intends  to  realize,  is 
inadequate  and  must  be  replaced  by  a  more  fitting  one. 

§1.  Mechanismof  the  Animal  Will.  We  can  facilitate 
our  search  or  make  it  more  difficult  according  to  the  point 
at  which  we  begin.  We  may  look  for  purpose  where  it 
has  attained  its  full  development :  in  the  market  of  life, 
in  the  varied  and  confusing  tumult  of  human  endeavor. 
Here,  however,  we  should  have  but  little  prospect  of 
mastering  it  so  readily,  for  in  Protean  fashion  it  changes 
its  form  there  unceasingly.  But  we  may  also  look  for 
it  in  a  place  where  it  appears  in  a  very  simple  form,  so 
that  we  cannot  fail  to  recognize  it,  I  mean  in  that  stage 
where  it  first  emerges  in  creation:  in  the  low  stage  of 
animal  life.     Here  we  will  try  to  take  hold  of  it. 

Let  us  therefore  put  the  question,  "What  is  purpose?" 
with  regard  to  the  animal.  Let  drinking  be  the  process 
in  the  life  of  the  animal,  which  shall  give  us  an  answer 
to  our  question.  We  wish  to  know  the  elements  which 
are  contained  in  this  process. 


20  THE   CONCEPT   OF   PURPOSE        [Ch.  II 

The  animal  drinks,  the  animal  breathes.  Both 
processes  are  vital  functions  of  the  animal,  indispensable 
for  the  preservation  of  its  life.  Yet  they  are  essentially 
different.  Breathing  takes  place  involun  arily,  it  takes 
place  also  in  sleep;  drinking  is  voluntary,  and  unthink- 
able in  sleep.  Nature  has  reserved  to  itself  the  effecting 
of  the  former,  which  takes  place  altogether  according  to 
the  law  of  causality;  the  latter  she  has  handed  over  to 
the  animal,  and  it  is  accomplished  by  an  act  of  will  on 
the  part  of  the  animal,  i.e.,  it  comes  under  the  law  of 
purpose.  However  imperious  the  incitement  to  drink- 
ing may  be  which  nature  calls  forth  in  the  animal  by 
means  of  thirst,  it  may  be  overcome  by  a  counter  incite- 
ment that  is  greater;  a  well  trained  dog  will  not  drink 
until  his  master  permits. 

But  this  means,  in  other  words,  that  drinking  takes 
place  in  the  animal  in  the  form  of  self-determination. 
Self-determination ,  accordingly,  is  the  first  element  which 
we  derive  from  this  process. 

Why  does  the  animal  drink?  You  may  answer,  be- 
cause it  feels  thirsty.  But  we  have  shown  above  (p.  10) 
the  incorrectness  of  this  answer.  If  drinking  is  really 
an  act  of  the  will  in  the  animal,  it  cannot,  according  to 
the  law  of  purpose  established  in  the  last  chapter,  result 
from  a  "because,"  but  from  an  "in  order  that." 

Shall  we  then  have  to  answer  instead,  that  the  animal 
drinks  for  the  purpose  of  self-preservation?  This  answer 
is  both  true  and  false.  It  is  true  from  the  standpoint 
of  the  purpose  of  nature.  In  the  plan  of  nature  as  she 
has  actually  formed  the  animal  organism,  drinking  is  an 
indispensable  means  for  the  preservation  of  life.  But 
this  purpose  of  nature  is  not  at  the  same  time  that  of 
the  animal.  For  the  purpose  of  nature  the  copulation 
of  the  animal  is  also  indispensable,  but  when  the  animal 
undertakes  the  act  it  has  not  in  view  the  purpose  of 


§2]     CONCEPT  OF  PURPOSE  IN  ANIMALS       21 

preserving  the  species,  it  merely  follows  its  impulse,  it 
desires  to  put  an  end  to  the  discomfort  which  it  feels. 
In  both  cases,  when  it  drinks  and  when  it  copulates,  it 
serves  the  purpose  of  nature,  but  it  serves  it  only  by 
serving  itself,  i.e.,  two  purposes  coincide,  the  general 
purpose  of  nature  and  the  individual  purpose  of  the 
animal  (Chap.  3).^ 

The  purpose  of  drinking  from  the  standpoint  of  the 
animal  is  therefore  not  self-preservation;  hence,  it  is 
incorrect  to  think  of  the  instinct  of  self-preservation  as 
a  motive  that  influences  the  animal  itself,  one  might 
with  equal  right  speak  of  an  instinct  of  the  preservation 
of  the  species.  The  animal,  which  knows  nothing  of 
its  self,  but  only  feels  it,  cannot  have  the  thought  of  pre- 
serving its  self  as  something  valuable.  The  motive  which 
nature  sets  in  motion  in  order  practically  to  bring  about 
self-preservation  is  a  different  one,  viz.,  the  feeling  of 
pleasure  and  of  discomfort.  The  discomfort  which  the 
animal  feels  when  it  is  about  to  perform  an  act  according 
to  the  demand  of  nature  is  nature's  summons  to  the 
undertaking  of  the  act;  the  pleasure  which  the  animal 
feels  when  it  has  done  what  it  should  is  nature's  reward. 
Pleasure  from  the  standpoint  of  nature  means,  in  every 
living  being,  that  it  is  in  harmony  with  nature;  discom- 
fort, pain,  agony,  means  that  the  animal  is  in  disagree- 
ment with  nature. 

§  2.  Self-relation  in  Purpose.  The  purpose  which 
the  animal  pursues  in  drinking  is  therefore  not  that  of 

1  To  this  opposition  of  general  and  individual  purpose,  or  objective 
and  subjective,  I  return  in  the  second  volume  (first  section  n.  16), 
where  I  treat  of  the  teleology  of  the  ethical.  I  designate  there  the 
subjective  determining  reason,  which  is  different  from  the  purpose 
of  the  objectively  ethical  (the  ethical  norms),  by  the  term  motive. 
The  criterion  of  ethical  conduct  is  the  agreement  of  the  subjective 
determining  reason  with  the  objective  purpose  of  the  ethical. 


22  THE  CONCEPT  OF   PURPOSE       [Ch.  Ii 

self-presenation,  but  that  of  terminating  the  discomfort 
which  it  feels.  The  impulse  to  its  purpose  is  given  to 
the  animal  accordingly  by  its  own  inner  state,  it  comes 
to  it  not  from  without  but  from  within.  We  have  thus 
found  the  second  element  to  be  derived  from  the  process 
in  question,  viz.,  the  purposive  reason  residing  in  the 
subject  himself,  the  inner  necessity  ("solicitation" 
["Sollizitierung"]  many  call  it)  of  setting  this  purpose 
to  itself. 

The  animal  turns  to  the  water;  it  knows  from  experi- 
ence that  the  water  can  quench  its  thirst.  In  directing 
its  faculty  of  desire  to  the  water  it  establishes  a  practical 
relation  between  itself  and  the  w^ater,  and  this  is  the  third 
element  in  the  voluntary  process,  viz.,  purpose-relation 
or  self -relation.  This  relation,  however,  expresses  itself 
in  the  animal  in  the  form  of  a  feeling  of  its  dependence 
upon  the  water,  of  its  being  conditioned  by  the  latter. 
It  is  the  same  element  which  we  shall  find  later  (Chap.  12) 
in  man  as  Interest. 

Purpose-relation  effects  the  transition  from  the  cause 
of  volition  to  purpose.  To  express  ourselves  concretely, 
the  discomfort  of  the  animal  (the  condition  occasioning 
volition)  calls  forth  in  it  the  desire  to  remove  the 
same  (first  beginning  of  purpose).  It  recognizes  in  the 
water  the  means  for  attaining  this  purpose  (purpose- 
relation)  ;  the  hitherto  undetermined  volition  acquires 
thereby  a  determined  direction.  The  expression  of  the 
inner  state  of  the  subject  in  this  stage  of  the  voluntary 
process  is  the  feeling  of  dependence. 

After  the  animal  has  taken  the  water  to  itself,  the 
purpose  is  attained,  i.e.,  its  relation  of  dependence  upon 
the  water  has  ceased.  But  it  has  not  merely  ceased,  it 
has  changed  into  its  opposite.  The  water,  which  till 
now  had  the  power  over  the  animal  and  determined  the 
latter,  has  now  come  into  the  power  of  the  animal,  and 


§3]     CONCEPT  OF  PURPOSE  IN  ANIMALS      23 

is  determined  by  the  latter,  it  has  become  the  servant, 
i.e.,  the  means  for  the  animal's  purpose.  The  concept 
of  means  consists  therefore  in  the  purposive  dependence 
of  the  subject  upon  it. 

§  3.  Realization  of  the  Conditions  of  Existence  through 
the  Will.  Let  us  now  combine  in  a  formula  the  essen- 
tial features  resulting  from  our  consideration  of  the 
voluntary  process  in  the  animal,  adding  thereto  the  ele- 
ment of  the  external  deed  discussed  above  (p.  16). 
Our  formula  will  then  be:  (1)  the  removal  of  (2)  the 
inner  feeling  of  dependence  (3)  through  one's  own 
power  (4)  by  means  of  acting  upon  the  world  of  sen- 
sible matter.  The  third  and  fourth  elements  of  this 
formula  (self-determination  and  external  deed)  have  no 
further  interest  for  our  purpose  of  comparing  the  volun- 
tary process  in  man  with  that  of  the  animal;  the  first 
and  second,  however,  are  extremely  important.  In 
these  two  seems  to  be  contained  the  principle  that  the 
reason  and  the  purpose  of  the  will  reside  in  the  animal 
itself,  the  movement  of  the  will  starts  from  the  animal 
and  returns  to  it  again ;  in  other  words,  the  animal  does 
everything  for  its  own  sake. 

Is  this  principle  true?^  It  has  been  derived  from  a 
process  where  it  fits,  but  there  are  in  the  life  of  the 
animal  other  processes  to  which  it  does  not  apply.  The 
animal  feeds  and  protects  its  young,  and  many  even  risk 
their  lives  for  them.  The  animal  therefore  acts  not  only 
for  itself  but  also  for  others.  Our  formula  therefore 
which  represents  the  animal  as  acting  for  itself,  and 
thus  realizing  nature's  purpose  of  its  self-preservation, 
does  not  by  any  means  exhaust  the  essence  and  the 
function  of  the  animal  will  in  the  plan  of  creation. 
Nevertheless  we  shall  for  the  present  adhere  to  this 

^  I  maintained  it  in  the  first  edition. 


24  THK   CONCEPT   OF   PURPOSE        [Ch.  II 

formula  in  the  consideration  of  the  human  will,  which 
follows,  in  order  to  see  how  far  it  will  be  adequate  for  an 
understanding  of  human  will. 

In  man  we  designate  the  exclusive  tendency  of  the 
will  to  one's  own  self  as  egoism.^  The  following  investi- 
gation is  meant  to  show  what  part  egoism  plays  in  the 
human  world,  what  it  is  able  to  accomplish,  and  where  it 
fails.  After  we  have  learned  the  whole  extent  of  its 
powers,  we  shall  have  an  opportunity,  in  studying  the 
theory  of  the  ethical  (Chap.  9),  to  form  a  conception  of 
the  phenomenon  of  acting  for  others,  which  seems  quite 
inexplicable  from  the  standpoint  of  egoism. 

^  The  reason  why  the  expression  is  not  applied  to  the  lower  animals 
will  be  stated  in  connection  with  the  discussion  of  the  ethical  ele- 
ment (II,  n.  12). 


§2]  EGOISM  IN  SOCIAL  SERVICE  25 


CHAPTER  III 

EGOISM    IN    THE    SERVICE    OF    ALTRUISTIC 
PURPOSES 

§  1.  COINCIDENCE  OF  THE  PURPOSES  OF  THE  ETHICAL 
WORLD.  —  §  2.  NATURE.  —  §  3.  COMMERCE.  —  §  4.  ORGAN- 
IZED AND  NON-ORGANIZED  PURPOSES.  —  §  5.  THE  STATE 
AND  THE  LAW. 

§  L  Coincidence  of  Purposes.  How  can  the  world 
exist  under  a  regime  of  egoism,  which  desires  nothing  for 
the  world,  but  everything  for  itself  alone?  The  answer 
is,  the  world  exists  by  taking  egoism  into  its  service,  by 
paying  it  the  reward  which  it  desires.  The  world  inter- 
ests egoism  in  its  purposes,  and  is  then  assured  of  its 
co-operation. 

This  is  the  simple  device  by  means  of  which  nature, 
as  well  as  humanity  and  the  individual  man,  gain  con- 
trol of  egoism  for  their  purposes. 

§  2.  Nature.  Nature  wills  the  existence  of  human- 
ity. For  the  realization  of  this  will  it  is  necessary  that 
the  individual  man  preserve  the  life  which  nature  gave 
him,  and  hand  it  down  to  others  after  him.  The  self- 
preservation  and  propagation  of  the  individual  are  there- 
fore necessary  conditions  for  the  attainment  of  nature's 
purpose.  How  does  she  attain  this  purpose?  By  inter- 
esting egoism  in  it.  This  she  accomplishes  by  offering 
the  latter  a  premium  in  case  it  does  what  it  should,  viz., 
pleasure,  and  by  threatening  punishment  if  it  does  not 
do  what  it  should,  or  does  what  it  should  not,  viz.,  pain. 
If  by  exception  the  two  fail  of  their  effect,  nature  is 
powerless.     If  the  sum  of  physical  or  moral  pain  which 


26  THE  CONCEPT  OF   PURPOSE      [Ch.  Ill 

life  holds  out  to  a  man  is  greater  than  the  sum  of  pleas- 
ures or  enjoyments  which  it  ofTers  him,  life  is  no  longer 
for  him  a  good,  but  a  burden,  and  as  everyone  throws 
away  a  good  which  has  turned  into  a  burden,  so  the 
egoist  throws  away  his  life  —  suicide  is  in  such  a  case 
the  inevitable  conclusion  to  egoism.  Whether  there  is 
not  another  standpoint  upon  which  a  man  may  place 
himself  in  such  a  case  is  a  question  which  we  shall  have 
occasion  later  to  investigate;  as  far  as  nature  is  con- 
cerned the  man  justifies  himself  before  her  simply  by 
saying:  the  premium  which  you  have  offered  me  for 
preserving  my  life  is  too  small  in  comparison  with  the 
pains  and  agonies  which  you  have  laid  upon  me,  it  is 
your  own  fault  if  I  return  to  you  a  gift  which  has  no  longer 
any  value  for  me,  and  which  I  am  not  in  duty  bound  to 
retain;  we  two  stand  merely  on  terms  of  mutual  give 
and  take. 

But  nature  has  taken  care  that  those  cases  in  which 
the  account  tells  against  her  shall  be  very  rare  and  iso- 
lated; she  has  so  regulated  the  average  relation  between 
pleasure  and  pain  in  life  that  the  former  regularly  has 
the  preponderance.  If  nature  had  not  done  this,  or  if  it 
were  possible  that  the  relation  should  change  so  that 
pleasure  should  be  less  than  pain,  nature  would  have 
the  same  experience  as  an  employer  of  labor  who  reduces 
the  wage  of  his  workmen  beyond  measure,  and  is  left 
without  hands;  the  world  would  die  out  in  the  second 
generation. 

Nature  also  can  win  man  for  her  purposes  only  by 
setting  in  motion  the  lever  of  his  own  interest  within 
him.  She  herself  has  chosen  this  way;  if  she  had  not 
wanted  it  she  would  have  had  to  make  man  different 
from  what  he  is.  As  he  is,  she  has  no  other  means  of 
making  him  serviceable  to  her  purpose  than  by  appeal- 
ing to  his  own  interest.     This  interest  she  has  given  him 


§2]  EGOISM  IN  SOCIAL  SERVICE  27 

in  the  form  of  pleasure  and  pain.     By  means  of  pleasure 
and  pain  nature  is  able  to  guide  us  in  the  paths  that  we 
should   follow,  by  means  of  these    two  she  unites  our 
interests  to  her  purposes.     He  who  does  something  for 
the  sake  of  the  pleasure,  or  forbears  because  of  the  evil 
consequences,  acts  for  his  own  sake,  but  he  carries  out 
at  the  same  time  the  orders  of  nature.     If  there  is  any- 
thing which    confirms  me  in  the  belief  of  purpose  in 
nature,  it  is  the  use  she  makes  of  pain  and  pleasure. 
Imagine  them  absent  or  interchanged,  associate  pain  with 
nourishment  and  pleasure  with  death,  and  the  human 
race  would  disappear  in  the  first  generation.     If  there  were 
no  purpose  of  nature  at  the  basis  of  the  feeling  of  pleas- 
ure, why  has  she  attached  it  only  to  the  voluntary  and 
intentional  functions  of  the  human  organism,  why  not 
also  to  the  involuntary?     Why  does  not  the  circulation 
of  the  blood  and  respiration  cause  man  the  same  pleas- 
ure as  the  satisfaction  of  hunger  and  thirst?     He  who 
holds  that  matter  forms  itself  without  purpose  or  plan 
has  no  answer  to  this  question.     It  would  be  incompre- 
hensible why  pleasure,  left  to  pure  chance,  should  have 
made  its  appearance  at  one  point  of  animal  life,  and  not 
also  at  another,  why  it  should  not  have  attached  itself 
just  as  well  to  the  coming  and  going  of  the  teeth,  the 
growth  of  the  hair,  as  to  nourishment  and  copulation. 
But    nature   economizes   pleasure  —  she  grants  it  only 
where  she  cannot  do  without  it,  only  as  a  premium  for 
something  for  which  she  has  need  of  animal  or  man. 
In  the  same  way  does  she  employ  pain.     Pain,  too,  does 
nor  appear  without  plan,  but  is  just  as  much  calculated 
by  nature  as  pleasure.     An  interruption  of  the  normal 
functions  of  our  organs  which  does  not  threaten  the  con- 
tinuance of  life,  as,  for  example,  the  interruption  of  see- 
ing and  hearing  by  the  closing  of  the  eyes  and  ears,  is 
not  connected  with  any  pain,  but  the  retention  of  the 


28  THP:   concept   of    PURPOSK      [Ch.  Ill 

breath   produces   at    once   discomfort.     Pain   serves   in 
creation  as  a  warning  of  danger. 

§  3.  Commerce.  Nature  herself  has  shown  man  the 
way  he  must  follow  in  order  to  gain  another  for  his  pur- 
poses: it  is  that  of  connecting  one's  own  purpose  with  the 
other  mans  interest.  Upon  this  principle  rests  all  our 
human  life:  the  State,  society,  commerce,  and  inter- 
course. The  co-operation  of  a  number  of  people  for 
the  same  purpose  is  brought  about  only  by  the  converg- 
ing of  all  the  interests  upon  the  same  point.  No  one 
perhaps  has  in  view  the  purpose  as  such,  but  every  one 
has  his  own  interest  in  view,  a  subjective  purpose  which 
is  quite  different  from  the  general  objective  one,  but  the 
coincidence  of  their  interests  with  the  general  purpose 
brings  it  about  that  every  one  in  taking  pains  for  himself 
at  the  same  time  becomes  active  for  the  general  purpose. 

Where  such  an  interest  is  not  present  originally,  it 
must  be  created  artificially.  Let  us  take  the  simplest 
case  of  an  individual  who  needs  the  co-opei;3tion  of  another 
in  order  to  attain  his  purpose.  The  extension  of  my 
factory  requires  the  cession  of  a  piece  of  land  on  the  part 
of  my  neighbor.  Every  one  knows  that  the  only  pros- 
pect I  have  of  coming  into  possession  of  the  land  is  by 
purchase.  By  means  of  my  ofifer  of  purchase  I  create 
artificially  in  the  person  of  my  neighbor  an  interest  in 
the  realization  of  my  purpose,  provided  I  offer  him  an 
amount  such  that  his  interest  in  relinquishing  his  claim 
to  the  land  is  greater  than  in  retaining  it.  If  he  demands 
more  than  my  interest  amounts  to,  then  there  is  no  agree- 
ment in  our  respective  interests,  and  the  purchase  does 
not  take  place.  Only  when  the  price  is  high  enough  to 
make  the  sale  of  the  land  more  advantageous  for  him 
than  its  ownership,  and  low  enough  to  make  the  purchase 
similarly  ad\'antageous  for  me,  is  the  point  reached 
where  the  two  interests   are  in   equilibrium,    and    the 


§3]  EGOISM  IN  SOCIAL  SERVICE  29 

consequence  is  the  conclusion  of  the  contract  of  sale.  The 
fact  of  the  conclusion  of  the  contract  contains  the  proof 
that  according  to  the  judgment  of  the  two  contracting 
parties  the  point  of  identity  of  the  several  interests  has 
been  reached.  The  judgment  might  have  been  erro- 
neous, the  subjective  conviction  or  the  objective  state  of 
the  interest  might  change  later,  it  nevertheless  remains 
true  that  at  the  decisive  moment  the  two  parties  were 
subjectively  convinced  of  the  coincidence  of  their  inter- 
ests, otherwise  they  would  not  have  come  to  an  agree- 
ment. Agreement  of  wills  in  a  contract  ("consensus") 
means  agreement  of  the  parties  concerning  the  complete 
identity  of  their  respective  interests. 

As  it  is  not  the  objective  interest  but  the  subjective 
judgment  of  the  presence  of  the  latter  that  is  decisive, 
all  the  means  which  are  capable  of  calling  forth  this 
judgment  are  just  as  much  calculated  to  bring  about 
an  agreement  as  those  which  aim  at  the  objective  estab- 
lishment of  an  interest.  Hence  the  value  of  business 
eloquence  in  the  making  of  contracts  —  he  who  speaks 
well  pays  less  or  gets  more  than  he  who  speaks  poorly. 
The  buyer  lowers  the  value  of  the  article,  i.e.,  he  seeks 
to  convince  the  seller  that  the  latter  has  an  interest  in 
giving  up  the  article  for  the  price  offered;  the  seller 
praises  it  up,  i.e.,  he  seeks  to  convince  the  buyer  that  his 
interest  requires  he  should  take  it  for  the  price  asked; 
each  of  the  two  parties  endeavors  to  prove  the  existence 
of  an  interest  for  the  other  which  he  does  not  properly 
value,  and  experience  shows  that  the  eloquence  of  daily 
life  is  not  without  its  reward.* 

^  Closely  connected  with  this  is  the  juristic  concept  of  "dolus"  in 
the  making  of  contracts.  The  purpose  of  "dolus"  consists  in  bring- 
ing about  a  conviction  of  interest;  not,  however,  by  means  of  busi- 
ness eloquence,  which  is  fully  tolerated  by  the  law  (Dig.  4.  3.  37: 
Quod  venditor  dicit  ut  commendet),  but  by  the  display  of  false  facts 
calculated  to  bring  about  the  decision  of  the  other  person,  hence  by 
aid  of  lies. 


30  THE   CONCEPT   OF   PURPOSE      [Ch.  hi 

The  circumstances  just  described  form  the  basis  of 
all  intercourse,  not  merely  commercial,  of  which  I  am 
thinking  especially,  but  also  social.  The  purposes  of 
social  life  also  can  be  attained  only  by  moving  the  other 
side  with  a  lever  of  interest,  except  that  the  interest 
here  is  of  a  different  nature  from  that  which  is  employed 
in  commercial  life.  Here  it  is  the  interest  of  entertain- 
ment, distraction,  pleasure,  vanity,  ambition,  social  con- 
sideration, etc.  But  without  such  interest,  here  also, 
no  person  can  be  moved,  no  society  is  thinkable,  even  in 
the  social  sense,  unless  the  guests  find  their  advantage 
therein.  By  lending  their  presence  they  show  that  such 
an  interest  • —  even  though  perhaps  the  negative  one  of 
a  social  duty  —  exists  in  their  person. 

§  4.  Organized  and  Unorganized  Purposes.  I  have 
so  far  had  in  view  the  case  of  individual  purposes  for  the 
realization  of  which  one  needs  the  co-operation  of  other 
persons;  and  it  has  been  shown  that  egoism,  or  letting 
the  other  person's  interest  share  in  one's  own  purpose, 
is  a  sure  means  of  securing  this  co-operation.  The  same 
holds  true  of  the  purposes  of  the  group. 

These  are  of  two  kinds :  those  for  the  pursuit  of  which 
there  is  an  apparatus  created  by  a  confirmed  and  regu- 
lated union  of  members  having  a  similar  aim,  i.e.,  organ- 
ized purposes;  and  those  which  have  no  such  system, 
but  depend  entirely  upon  the  free  efforts  of  individuals, 
i.e.,  unorganized  purposes.  As  the  latter  have  no  par- 
ticular interest  for  us,  I  confine  myself  to  giving  a  few 
examples. 

I.  Unorganized  Purposes.  1.  Science.  Science 
unites  all  its  members  into  an  invisible  community. 
They  all  exert  their  powers  for  the  purposes  of  science, 
and  the  total  result  of  the  co-operation  of  all  its  dis- 
ciples consists  in  the  preservation,  extension,  and  increase 
of  science.     The  form  of  this  activity  is  on  the  whole 


§4]  EGOISM  IN  SOCIAL  SERVICE  31 

completely  free,  for  although  there  is  an  organization  in 
science,  viz.,  the  organization  of  teaching  in  the  form  of 
institutions  of  learning,  and  that  of  research  in  academies, 
it  needs  no  saying  that  such  organization  is  not  meant 
to  replace  the  spontaneous  movement  of  science.  Nor 
could  it  do  so,  even  within  the  boundaries  of  a  single 
State,  not  to  speak  of  the  higher  unity  of  science,  which 
embraces  the  whole  world. 

Such  universal  sovereignty  comes  to  science  of  itself. 
How?  By  its  own  power  and  force  of  attraction.  But 
this  is  only  another  way  of  expressing  the  interest  which 
determines  every  individual  to  devote  himself  to  it; 
we  might  in  the  same  way  designate  the  force  of  attrac- 
tion of  money  as  the  lever  of  commerce.  In  both  cases, 
in  commerce  as  well  as  in  science,  it  is  the  purely  self- 
regarding  interest  of  the  individual  that  produces  the 
activity,  except  that  the  interest  in  science  is  incompar- 
ably more  complex;  consisting  as  it  does  in  the  inner 
satisfaction  which  it  yields,  the  feeling  of  duty,  of  ambi- 
tion, of  vanity;  the  living  it  offers;  and  after  the  failure 
of  all  other  motives  besides,  that  of  mere  habit;  to  be 
secure  from  the  dread  of  ennui.  He  who  does  not  in  some 
way  find  his  advantage  in  science,  will  not  work  for  it, 
any  more  than  will  a  laborer  whom  the  pay  does  not 
attract.  In  a  place  where,  and  at  a  time  when,  the 
rewards  of  science  offer  no  incentive,  the  latter  will 
look  in  vain  for  disciples. 

2.  Political  Parties.  As  a  second  example  of  unor- 
ganized co-operation  for  like  purposes  which  interest 
brings  about,  I  name  the  political  party,  whose  guarantee 
for  the  co-operation  of  its  members  rests  merely  upon 
the  existence  of  a  union  of  interest  and  the  intensity 
with  which  this  is  regarded  by  the  several  members. 

II.  Organized  Purposes.  Organized  purposes  are 
so  extensively  represented  in  our  modern  world  as   to 


32  THE   CONCEPT   OF   PURPOSE      [Ch.  Ill 

make  it  scarcely  necessary  to  cite  examples.  To  the 
jurist  I  need  only  mention  such  forms  of  organization  as 
associations,  trade  guilds,  partnerships  and  corporations 
to  remind  him  of  the  infinite  wealth  these  purposes 
embody.  Let  me  select  from  their  number  an  example 
which  will  be  especially  instructive  from  our  point  of 
view  ■ —  the  formation  of  a  joint-stock  company  for  the 
purposes  of  building  a  railway.  Of  all  the  shareholders, 
no  single  one  perhaps  is  interested  in  the  objective  pur- 
pose of  the  railway,  viz.,  the  opening  of  a  new  route  of 
communication.  Government  alone  in  granting  the 
privilege  has  such  purpose  in  view  (for  the  government 
alone  interest  and  purpose  are  one),  and  yet  even  there 
artificial  stimulation  may  have  been  necessary  ere  the 
undertaking  could  be  set  in  motion.  Of  the  shareholders 
one  has  in  view  the  permanent  investment  of  his  capital; 
the  other  buys  shares  only  to  sell  them  again  immedi- 
ately; the  third,  a  wealthy  proprietor  of  landed  estate, 
or  manufacturer,  buys  in  the  interest  of  facilitating  the 
realization  on  his  products  or  manufactures;  the  fourth 
because  he  owns  shares  in  a  rival  company;  the  fifth,  a 
municipality,  because  it  is  a  condition  of  influencing  the 
selection  of  the  route  of  the  proposed  road  which  will 
be  favorable  to  it.  In  short,  everyone  has  his  special 
interest  in  view,  no  one  thinks  of  the  purpose,  and  yet 
the  same  is  perhaps  furthered  in  this  way  more  surely 
and  quickly  than  if  it  had  been  pursued  by  the  govern- 
ment directly. 

§  5.  The  State  arid  the  Law.  The  organization  of  pur- 
pose attains  its  highest  point  in  the  State,  not  in  the 
Church.  The  latter,  from  the  nature  of  its  purpose,  is, 
from  the  point  of  view  of  organization,  far  inferior  to  the 
State;  namely,  in  reference  to  what  is  the  purely  ex- 
ternal element  of  the  machinery  by  which  the  purpose 
is  realized. 


5  5]  EGOISM  IN  SOCIAL  SERVICE  33 

The  organization  of  the  purpose  of  the  State  is  char- 
acterized by  the  extended  application  of  law.  Does 
this  mean  that  the  lever  of  egoism  or  of  interest  in  this 
sphere  is  inadequate  or  superfluous?  Not  at  all,  for  the 
law  itself,  even  though  it  carries  necessity  on  its  banner, 
must  after  all  appeal  to  interest,  i.e.,  to  free  action  in 
accordance  with  one's  own  choice;  it  attains  its  purpose 
in  most  cases  only  by  bringing  interest  over  to  its  side. 
The  criminal  is  not  concerned  about  the  purpose  of  the 
State  or  of  society,  he  is  guided  in  his  deed  solely  by  his 
own  purpose,  by  his  lust,  his  greed  or  other  viciousness, 
in  short,  his  interest.  But  it  is  exactly  this  interest  of 
his  with  regard  to  which  the  State  calculates  what  means 
for  protecting  itself  against  him  it  has,  by  punishment. 
For  the  State  says  to  him:  follow  your  interest,  but  see 
to  what  side  the  balance  inclines  when  I  put  punish- 
ment in  one  of  the  scales.  If  the  instrument  so  often 
fails  of  its  purpose  despite  the  fact  that  the  punishment 
is  made  severe  enough,  this  is  due  in  most  instances 
to  the  fact  that  the  threat  of  punishment  is  after  all  no 
more  than  a  threat,  the  psychological  effect  of  which  in 
every  case  depends  upon  the  criminal's  calculation  of 
the  chances  of  his  discovery. 

But  not  every  law  carries  punishment  with  it.  The 
law  which  commands  the  debtor  to  pay  his  debt,  or  the 
possessor  of  an  article  belonging  to  another  to  return  it 
to  its  owner,  threatens  no  punishment.  What  deter- 
mines these  persons  to  do  what  they  should?  To  be 
pure  they  have  no  penalties  to  apprehend,  but  other 
disadvantages  await  them  (legal  costs).  If  despite  this 
]  rospect  so  many  legal  actions  are  preferred  by  those 
who  know  that  they  are  in  the  wrong,  the  reason  is  the 
same  as  above  in  the  case  of  the  criminal,  the  hope  that 
for  lack  of  evidence  the  law  will  not  succeed  in  reaching 
them. 


34  THE   CONCEPT  OF   PURPOSE       [Ch.  hi 

But  although  in  this  case  the  law  to  a  certain  extent 
still  finds  in  interest  an  ally,  there  is  a  point  where  the 
possibility  of  such  alliance  ceases,  and  where  direct  com- 
pulsion alone  can  accomplish  the  thing  desired.  Inter- 
est will  not  determine  the  accused  or  the  condemned 
to  betake  himself  to  the  inquest  chamber  or  the  house 
of  correction,  or  to  mount  the  scaffold  —  direct  compul- 
sion is  necessary.  Similarly  must  compulsion  be  em- 
ployed when  dealing  with  the  condemned  debtor  who  is 
not  willing  to  pay  the  debt  of  his  own  accord  (a  levy 
upon  his  property). 

The  apparatus  which  the  State  employs  for  realizing 
its  purposes  is  exactly  the  same  as  that  which  nature 
applies  to  the  fulfilment  of  her  objects.  It  is  based  upon 
a  two-fold  manner  of  compulsion,  a  direct  or  mechanical, 
and  an  indirect  or  psychological.  The  circulation  of  the 
blood,  digestion,  etc.,  nature  effects  in  a  mechanical  way, 
she  takes  care  of  the  matter  herself;  and  similarly  the 
State  manages  the  infliction  of  penalties,  the  execution  of 
civil  sentences,  and  collection  of  taxes.  Other  functions 
and  activities,  on  the  other  hand,  both  nature  and  State 
have  left  to  the  initiative  of  the  individual  himself.  In 
fact  those  activities  in  general  which  are  not  essential  to 
their  purpose,  they  leave  uncoerced  —  they  form  the  indi- 
vidual's free  (physical  and  legal)  domain.  Those  activi- 
ties, however,  which  are  essential  to  their  purpose,  both 
have  secured  by  the  indirect  compulsion  of  psychological 
pressure. 

Unity  of  purposes  and  Interests  on  both  sides  is  the 
formula  whereby  nature,  the  State  and  the  individual 
gain  power  over  egoism.  Upon  it  rests  the  wonderful 
phenomenon  of  the  human  world,  that  a  force  directed 
to  the  lowest  purposes  brings  about  the  highest  results. 
It  wills  itself  alone,  its  poor  evanescent  ego  with  its  paltr>' 
interests,  and  it  calls  into  being  works  and  structures 


§5}'  EGOISM  IN  SOCIAL  SERVICE  35 

compared  with  which  the  ego  is  like  a  grain  of  sand  in 
comparison  with  the  Alps.  Nor  is  the  counterpart  to 
this  wanting  in  nature.  In  the  chalk  cliffs  of  the  Infu- 
soria, we  find  a  similar  marvel ;  where  an  animal  so  tiny 
as  to  be  imperceptible  to  the  naked  eye  creates  a  whole 
mountain.  The  Infusorium  is  egoism  —  he  knows  and 
wills  only  himself,  and  yet  creates  a  world! 


36  THE   CONCEPT   OF   PURPOSE       [Ch.  IV 

CHAPTER  IV 
THE   PROBLEM    OF  SELF-DENIAL 

§  1.  THE  IMPOSSIBILITY  OF  ACTION  WITHOUT  INTER- 
EST.—§  2.  INTEREST  IN  SELF-DENIAL. —  §  3.  CONTRAST 
OF  SELF-REGARDING  AND  NON-SELF-REGARDING  ACTION. 
—  §4.  SELF-DENIAL  AND  UNSELFISHNESS.—  §6.  PLAN  OF 
INVESTIGATION:  SYSTEM  OF  HUMAN  PURPOSES. —  §  6. 
THE  DIFFERENT  SPECIES  OF  SELF-ASSERTION. 

§  1.  Impossibility  of  Action  without  Interest.  The 
preceding  development  has  shown  that  action  for  others 
is  not  beyond  the  capacity  of  egoism.  But  this  was  based 
on  a  very  important  assumption,  namely,  that  in  action 
for  others  there  is  involved  action  for  oneself. 

This  assumption  holds  good  for  countless  actions  of 
our  life,  but  who  would  venture  to  say  that  it  is  true  for 
all?  Does  the  mother  desire  anything  for  herself  when 
she  sacrifices  herself  for  her  child?  Or  the  Sister  of 
Mercy,  who  risks  her  own  life  at  the  bedside  of  one 
suffering  from  the  plague,  in  order  to  save  the  life  of 
another?  He  who  knows  no  other  motive  of  human 
action  than  egoism  will  find  insoluble  riddles  confronting 
him  in  human  life.  His  own  admission,  that  he  is  not 
himself  capable  of  such  acts  of  self-denial,  must  force 
from  the  egoist  the  acknowledgment  that  there  are  other 
motives  of  human  action  in  the  world  besides  egoism. 

Language  designates  the  sentiment  from  which  these 
actions  proceed  as  self-denial;  the  agent  in  his  action 
desires  nothing  for  himself,  but  for  another.  The  possi- 
bility of  such  action  is  not  a  contradiction  of  the  law  of 
will  proved  before  to  be  one  with  the  law  of  purpose. 


in'  PROBLEM  OF  SELF-DENIAL  37 

Self-denial,  too,  contains  something  of  future  desire,  but 
it  is  a  desire  that  reaches  out  for  others,  not  for  oneself. 
Still,  in  the  phrase  "for  others"  lies  the  difficulty!  He 
who  has  never  reflected  on  this  matter  will  not  compre- 
hend why  we  see  in  this  the  most  difficult  problem  of  the 
human  will.  What  can  be  more  simple?  such  a  one 
will  aver:  experience  shows  us  self-denial  daily.  The 
egoist  alone,  in  whose  narrow  soul  the  thought  of  a 
sacrifice  for  others  finds  no  room,  can  object  thereto. 
Yet  daily  experience  also  shows  us  that  a  stone  falls. 
But  to  see  a  phenomenon  and  to  comprehend  it  are  two 
diff^erent  things;  science  required  thousands  of  years 
before  it  understood  the  fall  of  a  stone.  To  the  psycholo- 
gist a  disinterested  action,  a  deed  done  for  others,  con- 
tains no  less  a  problem  than  does  for  the  physicist  the 
fall  of  a  stone,  nay,  rather,  the  problem  is  even  more 
difficult.  To  him  this  fact  is  not  a  whit  less  wonderful 
than  if  water  were  suddenly  to  rise  up  a  mountain.  A 
recent  philosopher  *  declares  that  sympathy  is  a  mysteri- 
ous fact  —  but  yet  how  far  inferior  still  is  sympathy,  a 
mere  feeling,  in  comparison  with  practical  self-denial; 
an  act  done  for  others  at  the  expense  of  ourselves! 

Yet  not  all  philosophers  have  looked  at  the  matter  in 
this  way.  To  the  mind  of  one  of  the  greatest  philoso- 
phers of  all  times,  Kant,  the  matter  presents  not  the 
least  difficulty.  His  concept  of  duty  contains  the  postu- 
late of  absolute  self-renunciation;    man  must  fulfil  his 

^Schopenhauer,  "Die  beiden  Grundprobleme  der  Ethik"  (2d  ed. 
Leipzig,  1860),  p.  209,  229.  It  is  "something  of  which  the  mind 
cannot  give  an  immediate  account,  and  the  causes  of  which  cannot  be 
found  by  experience."  It  is  "the  great  mystery  of  ethics,  its  primi- 
tive phenomenon  and  the  boundary  stone  beyond  which  meta- 
physical speculation  alone  can  venture  to  proceed."  This  attempt 
of  a  metaphysical  explanation  he  makes  pp.  260-275.  I  think  I 
shall  be  able  in  the  sequel  to  come  to  the  same  result  in  a  simpler 
way. 


38  THE   CONCEPT   OF   PURPOSE       [Ch.  IV 

duty  without  any  reference  to  himself,  i.e.,  not  for  the 
sake  of  a  subjective  purpose,  or  motive,  but  for  the  sake 
of  an  objective  one  (p.  21,  note),  Kant's  categorical  im- 
perative, upon  which  his  whole  ethics  is  based, ^  makes 
the  demand  upon  the  will  that  it  set  itself  in  motion 
without  any  interest;  its  movement  is  to  be  caused  solely 
"by  a  formal  principle  of  volition  in  general,  taking  no 
account  of  any  effect  to  be  expected  therefrom"  (p.  20). 
The  will  is  "deprived  of  all  such  incentives  as  may  arise 
from  obedience  to  any  law,  and  there  remains  nothing 
therefore  except  conformity  to  the  law  of  actions  in 
general,  which  alone  must  serv-e  the  will  as  its  principle" 
(p.  22).  The  imperative  excludes  "every  admixture  of 
interest  as  a  motive"  (p.  60).'  The  moral  law  must 
"not  be  sought  for  in  the  nature  of  man  (subjective), 
nor  in  the  circumstances  of  the  world  (objective).  Not 
the  least  thing  must  be  borrowed  from  the  knowledge  of 
man,  i.e.,  from  anthropology"  (pp.  5,  6). 

The  bare  concept  therefore  is  to  drive  the  man  to  act 
and  nought  else.  Kant  in  fact  does  expressly  protest 
against  all  "moral  sentimentality"  (p.  211):  "the  feeling 
of  pity,  and  soft-hearted  sympathy  .  .  .  is  even  irksome 
to  right  thinking  persons"  (p.  257) ;  "man's  ethical  stand- 
point is  respect  for  the  moral  law"  (p.  212).  The  sympa- 
thetic person  must  not  take  pity  upon  the  poor  by  reason 

'^  See  his  "Grundlegung  der  Metaphysik  der  Sitten"  and  "Die 
Kritik  der  praktischen  Vernunft."  The  citations  in  the  text  refer 
to  the  edition  of  the  complete  works  of  Kant  by  Rosenkranz,  vol. 
VIII. 

'  The  same  idea  is  expressed  even  more  pointedly  by  Fichte  in  his 
"System  der  Sittenlehre."  For  a  selection  of  passages  from  it  see 
Schopenhauer,  "Grundprobleme,"  p.  181,  for  ex.  "I  am  only  an 
instrument,  a  mere  tool  of  the  moral  law,  and  not  at  all  an  end.  .  .  . 
The  body  must  be  nourished  and  its  health  protected  for  no  other 
purpose  than  that  one  may  be  an  efficient  tool  for  the  advancement 
of  the  end  of  the  reason." 


§  1  ]  PROBLEM  OF  SELF-DENIAL  39 

of  a  stir  of  sympathy ;  the  dutiful  must  not  fulfil  his  duty 
for  the  sake  of  an  inner  peace;  his  sole  motive  must  be 
simply  a  respect  for  the  formal  concept  of  conformity  to 
law.  All  this  in  order  that  the  categorical  imperative 
may  appear  in  all  its  glory  as  accomplishing  everything. 

If  it  only  could  !^  You  might  as  well  hope  to  move  a 
loaded  wagon  from  its  place  by  means  of  a  lecture  on  the 
theory  of  motion  as  the  human  will  by  means  of  the 
categorical  imperative.  If  the  will  were  a  logical  force, 
it  would  be  obliged  to  yield  to  the  power  of  a  concept, 
but  it  is  a  very  actual  existence  which  you  cannot  budge 
by  purely  logical  deductions,  and  one  must  have  actual 
pressure  to  set  it  in  motion.  This  real  force  which  moves 
the  human  will  is  interest. 

Let  us  examine  whether  the  case  is  different  in  self- 
denial  ;  whether  the  will,  according  to  Kant's  demands  of 
it,  can  set  itself  in  motion  without  interest. 

I  make  sacrifices  for  my  children,  for  my  friends,  for 
a  common  purpose,  but  not  for  the  Shah  of  Persia,  not 
for  the  building  of  a  temple  in  India.  My  self-denying 
motive  is  not  impelled  blindly,  finding  every  purpose 
equally  acceptable;  for  it  criticises  and  discriminates 
between  purposes.  They  must  all  have  some  definite 
reference  to  me  if  I  am  to  warm  up  to  them.  The 
Protestant  does  not  contribute  to  tlie  Pius  Association, 
nor  the  Catholic  to  the  Gustavus  Adolphus  Association ; 
I  would  not  do  for  a  total  stranger  that  which  I  do  for  a 
close  friend. 

This  idea  language  brings  out,  as  is  well  known,  by 
such  expressions  as,  to  become  interested,  to  take  part  in 
a  thing.  This  is  not  yet  the  place  more  precisely  to 
determine  wherein   such   becoming  interested  consists, 

*  Kant  himself  has  so  Uttle  confidence  in  it  that  he  admits  (p.  97) 
that,  "The  human  reason  is  altogether  unable  to  explain  how  pure 
reason  without  other  motives  .  .  .  can  be  practical  for  itself." 


40  THE   CONCEPT   OF   PURPOSE       [Ch.  IV 

and  on  what  it  is  based.  This  can  be  done  only  at  the 
end  of  our  investigation  (Chap.  XII);  for  the  present 
let  us  accept  the  idea  thus  expressed  by  language, 
which  we  may  suppose  as  understood  by  all. 

Being  interested  in  a  purpose,  or  briefly,  interest,  is 
an  indispensable  condition  for  every  action  —  action 
without  interest  is  just  as  much  an  absurdity  as  action 
without  a  purpose;  it  is  a  psychological  impossibility.^ 
The  interest  may  be  never  so  slight,  but  some  interest 
there  must  always  be,  if  the  purpose  is  to  have  power 
over  the  will. 

§  2.  Interest  in  Self-denial.  If  interest  links  the 
purpose  to  the  agent,  and  if  conduct  is  not  thinkable 
without  interest,  then  self-denial  must  come  under  the 
category  of  action /or  oneself.  In  this  case,  apparently, 
it  would  no  longer  be  what  it  assumes  to  be,  and  those 
moralists  would  be  right  who  maintain  that  the  motive 
of  every  human  action  is  egoistical. 

Yet  such  conclusion  were  too  hasty.  Self-denial  also 
presupposes  interest,  but  it  is  of  quite  a  different  kind 
from  that  of  egoism,  and  language  is  quite  right  when  it 
makes  a  sharp  distinction  between  the  two,  and  opposes 
"unselfish,  disinterested,  self-denying"  sentiment  to 
"egoistical,  self-interested,  self-seeking." 

§  3.  Self-regarding  and  Non-self-regarding  Acts.  In 
the  case  of  egoistic  action  for  another,  the  effect  which 
the  agent  produces  by  his  action  for  the  other  is  such  an 
indifferent  matter  to  him  that  he  would  prefer  to  attain 
his  purpose  without  it ;  it  is  merely  a  means  for  his  pur- 
pose. In  self-denying  action,  on  the  contrary,  the  effect 
is  the  purpose  which  the  agent  has  in  view;  if  it  cannot, 
or  can  no  longer,  be  attained,  he  forbears  the  act.  No 
one  will  leap  into  the  flame  or  into  the  water  in  order  to 

^Schopenhauer,  "Grundprobleme,"  p.  165,  "An  act  of  will  without 
interest  is  will  without  motive,  hence  an  effect  without  a  cause." 


§3]  PROBLEM  OF  SELF-DENIAL  41 

save  a  person  who  is  already  burned  or  drowned  —  he 
may  take  his  own  Hfe  in  despair  on  account  of  their 
death,  but  this  we  do  not  call  self-denial,  for  it  is  not 
action  for  another.  That  which  does  refer  to  the  agent 
himself  in  an  act  of  self-denial  is  solely  the  feeling  of 
having  helped  another  in  need,  of  having  caused  him 
joy;  it  is  the  reflex  of  another's  fortune,  another's  joy 
shining  back  in  one's  own  soul.  He  is  content  with  a 
minimum  part  thereof,  and  in  this  very  height  of  unpre- 
tentiousness  lies  the  beauty,  the  sublimity  of  self-denial. 
It  is  no  inward  satisfaction  with  his  own  good  deed  for 
which  the  agent  strives;  such  may  arise  from  merely  a 
cold  conformity  to  duty  without  any  warmth  of  heart. 
His  satisfaction  arises  with  the  success  of  his  deed  in  the 
person  of  another,  with  complete  banishment  of  thoughts 
of  self;   it  is  just  joy  in  another's  good  fortune. 

Reward  there  is  after  all,  the  egoist  will  exclaim;  and 
hence  egoism  again!  Let  such  egoist  try  to  discover 
for  himself  what  satisfaction  he  will  get!  The  reward 
which  the  hero  obtains  who,  in  order  not  to  let  the 
battleship  or  the  fort  fall  into  the  hands  of  the  enemy,  is 
blown  up  with  it,  would  very  likely  offer  small  tempta- 
tions for  him:  a  few  minutes  or  seconds  of  inner  satis- 
faction purchased  at  the  expense  of  one's  whole  life  — 
in  truth  a  dearly  bought  pleasure,  the  egoist  would 
think!  The  price  and  the  gain  are  here  in  the  same  pro- 
portion as  if  a  man,  in  order  to  warm  himself,  were  to 
feed  the  fire  in  the  stove  with  banknotes.  But  the 
egoist  calculates  too  well  for  this;  self-denial  is  a  luxury 
for  him  which  he  cannot  afford,  and  in  his  heart  of  hearts 
he  regards  it  as  folly  when  he  meets  it  in  others,  or  tries 
to  adjust  it  to  his  own  standpoint  by  introducing  ignoble 
and  egoistic  motives.  That  such  motives  as  vanity, 
expectation  of  gratitude,  appreciation,  etc.,  may  enter  is 
just  as  incontrovertible  as  it  is  undoubted  that  they 
need  not. 


42  THE   CONCEPT   OF   PURPOSE       [Ch.  IV 

§  4.  Self-denial  and  Unselfishness.  Language  knows 
beside  self-denial  also  the  term  unselfishness.  Whether 
the  two  expressions  are  wholly  synonymous,  or  whether 
they  contain  some  slight  difference  in  shade  of  meaning, 
I  shall  leave  undecided.  Nevertheless,  I  want  to  call 
attention  to  the  fact  that  in  reality  such  a  difference  exists 
between  them  and  that  it  would  be  well  to  use  these 
expressions  accordingly.  We  can  distinguish  two  kinds 
of  unselfish  action:  those  from  which  egoism  is  com- 
pletely separated;  those  which  afford  the  self  neither 
advantage  nor  yet  disadvantage,  and  those  which  exact 
from  it  a  sacrifice,  some  denial  of  its  individuality.  For 
the  latter  the  proper  expression  would  be,  self-denial; 
for  the  former,  unselfishness.  Let  me  remind  the  jurist 
of  the  form  in  which  the  contrast  is  expressed  in  law.  Of 
non-self-regarding  acts  (acts  of  liberality)  the  following, 
according  to  the  conception  of  Roman  law,  come  under 
the  category  of  the  unselfish,  viz.,  gratuitous  contracts 
(gratuitous  delivery  of  a  thing  for  use,  "commodatum," 
"precarium";  gratuitous  keeping  of  an  object  belonging 
to  another,  "depositum";  gratuitous  care  of  another's 
business,  "mandatum,"  "negotiorum  gestio") ;  under 
the  category  of  self-denial  comes  gift  ("donatio"  with 
its  subdivisions,  "pollicitatio"  and  "votum").  Gift  is 
the  juristic  form  of  proprietary  altruism,  sacrifice  of 
property  rights.® 

"  In  testamentary  dispositions  there  is  no  self-denial  psychologically. 
Juristically  they  are  distinguished  from  gift  by  the  fact  that  while 
both  of  them  signify  an  increase  in  the  property  of  the  beneficiary, 
the  latter  alone  involves  a  diminution  of  the  property  of  the  giver. 
We  may  apply  to  them  what  the  Roman  jurist  says  of  one  of  their 
subdivisions,  "mortis  causa  donatio":  "(magis)  se  habere  vult, 
quam  eum,  cui  donat,"  Dig.  39.  6.  1.  pr.  In  donation  "inter  vivos" 
the  case  is  reversed:  "magis  eum  quam  se  habere  vult."  Psycho- 
logically this  expresses  the  truest  distinction  between  the  two  species 
of  gift. 


§5]  PROBLEM  OF  SELF-DENIAL  43 

It  results  from  the  foregoing  that  there  is  no  action  for 
another  in  which  the  doer  does  not  at  the  same  time 
desire  something  for  himself.  In  egoistic  action,  that 
which  the  agent  expends  is,  according  to  the  standard  of 
human  estimation,  in  equilibrium  with  that  which  he 
acquires;  in  unselfivsh  action  there  is  a  lack  of  proportion 
between  the  two,  which  may  be  so  great  as  to  make  the 
act,  from  the  point  of  view  of  egoism  alone,  inexplain- 
able.  This  circumstance  compels  us  to  recognize  that 
egoism  is  not  the  only  motive  of  human  will,  that  there 
is  yet  another  motive  besides.  By  naming  it,  whether 
self-denial,  unselfishness,  power  of  sacrifice,  love,  devo- 
tion, sympathy,  goodwill,  etc.,  we  have  not  yet  compre- 
hended it,  and  as  long  as  this  is  so,  our  question  concern- 
ing the  meaning  of  purpose  in  human  will  still  waits  for 
its  solution  in  vain. 

§  5.  System  of  Human  Purposes.  Whereto  shall  we 
look  for  information?  Within  the  depths  of  our  own 
heart?  There  is  only  one  way,  I  believe,  which  will 
lead  us  safely  to  the  goal,  and  that  is  to  look  for  the  solu- 
tion of  the  problem  in  the  real  world.  There  must  be 
gathered  what  these  two  motives  really  signify  to  the 
world,  and  what  part  they  take  in  the  movement  which 
we  know  as  human  life.  When  we  know  what  they  sig- 
nify there,  we  shall  have  comprehended  them. 

Human  life  in  this  sense,  i.e.,  the  life  of  the  species  man, 
not  of  the  individual,  is  the  sum  total  of  all  human  pur- 
poses. Hence  the  task  to  which  we  apply  ourselves  in 
the  sequel  takes  the  form  of  a  system,  of  human  purposes. 
I  say  system,  which  means:  I  want  to  place  these  pur- 
poses not  merely  side  by  side  in  a  superficial  fashion, 
but  I  want  further  to  make  the  attempt  to  discover  the 
inner  connection  which  subsists  between  them.  I  want 
to  show  how  one  joins  itself  to  the  other,  the  higher  to 
the  lower;    and  not  only   this,    but  at   the  same  time 


44  THE   CONCEPT   OF   PURPOSE       [Ch.  IV 

produces  the  other  out  of  itself  and  as  a  consequence  of 
its  own  nature,  by  a  stringent  necessity. 

I  will  impose  upon  myself  only  one  limitation.  The 
work  is  addressed  solely  to  the  jurist,  and  this  has  deter- 
mined me  in  subordinate  matters  hitherto  to  introduce 
a  number  of  things  which  have  interest  for  him  alone. 
The  like  consideration  furthermore  guides  me  in  setting 
the  external  limitations  and  giving  the  inner  form  to  the 
system  of  human  purposes.  It  is  intended  not  for  the 
psychologist,  but  for  the  jurist.  Best  perhaps  I  can 
express  what  is  now  floating  before  my  mind  when  I  sa\- 
that  this  is  to  be  a  theory  of  practical  life,  sketched  not 
for  its  own  sake,  but  solely  with  the  purpose  of  finally 
answering  by  its  help  the  question,  Wherein  does  purpose 
in  the  human  will  consist? 

§  6.  The  Different  Species  of  Self-assertion .  The 
purposes  of  human  existence  in  general  fall  into  two  large 
groups;  those  of  the  individual,  and  those  of  the  com- 
munity (society).  This  contrast  we  place  as  the  basis 
of  our  presentation.  This  does  not  mean  that  in  the 
manner  of  those  holding  the  theory  of  the  Law  of  Nature 
we  wish  to  isolate  the  individual,  separating  him  artifi- 
cially from  his  historical  connection  with  society,  and 
then  to  present  over  against  such  merely  theoretical 
being-for-himself  of  an  individual,  his  actual  life  in  society 
and  being-for-others.  We  consider  the  individual  in 
the  position  which  he  actually  holds  in  the  real  world, 
but  in  picturing  his  life  to  ourselves  we  separate  from  it 
those  purposes  by  which  he  holds  in  view  solely  himself, 
and  not  society,  i.e.,  any  other  person  or  a  higher  pur- 
pose. These  purposes,  which  proceed  from  the  agent 
and  return  to  him,  we  designate,  as  is  well  known,  by 
the  term  egoistic.  Of  these  only  three  deserve  emphasis 
for  the  purposes  of  our  investigation.  I  comprehend  them 
all  under  the  name  of  individual  or  egoistic  self-assertion, 


§  6  ]  PROBLEM  OF  SELF-DENIAL  45 

and  discriminate  between  them  as  physical,  economical, 
and  juristic  self-assertion  in  accordance  with  the  three 
directions  in  which  the  purpose  of  self-assertion  is  realized 
by  them.  I  avoid  the  expression  self-preservation,  be- 
cause usage  refers  it  exclusively  to  the  first  class. 

The  purposes  of  the  second  class,  of  life  in  society, 
which  embrace  also  the  problems  of  the  State,  I  desig- 
nate as  social.  The  interest  which  these  have  for  us 
lies  not  in  themselves,  but  solely  in  the  manner  in  which 
society  and  the  State  induce  the  individual  to  co-operate 
in  their  realization.  The  activity  of  the  individual  for 
these  purposes  of  society  is  fittingly  designated  by  the 
term  social.  The  motives  which  prompt  such  social  action 
by  the  individual  are  of  two  kinds.  The  first  is  egoism, 
with  which  we  are  already  familiar.  The  means  by  which 
the  State  and  society  gain  the  mastery  over  this  motive 
are  reward  and  punishment.  The  second  motive  is  that 
which  contains  in  itself  the  solution  of  our  problem  of 
self-denial.  It  is  the  feeling  on  the  part  of  the  agent 
of  the  ethical  destiny  of  his  being,  i.e.,  his  feeling  that 
existence  was  given  to  him  not  merely  for  himself,  but 
also  for  the  service  of  humanity.  In  so  far  as  the  indi- 
\idual  obeys  this  feeling  and  thereby  realizes  the  higher 
purpose  of  his  being,  he  asserts  himself.  I  shall  there- 
fore designate  all  action  coming  under  this  point  of 
view,  as  ethical  self-assertion  of  the  individual. 

In  the  following  chapter  (V)  we  first  turn  our  atten- 
tion to  egoistical  self-assertion.  The  transition  to  social 
action  will  be  brought  about  by  a  consideration  oi  Society 
(Chapter  VI).  We  shall  then  take  up  the  two  egoistic 
levers  of  social  movement,  Reward  (Chapter  VII)  and 
Compulsion  (Chapter  VIII).  The  first  belongs  more 
particularly  to  business,  the  second  to  the  State,  and  the 
form  it  takes  constitutes  Law. 

Then  follows  ethical  self-assertion,  which  presupposes 


46  THE   CONCEPT   OF   PURPOSE      [Ch.  IV 

the  existence  of  morality,  and  consists  in  viewing  moral- 
ity as  the  ideal  condition  of  life  of  the  subject  —  com- 
plete identity  of  the  subjective  purpose  with  the  objec- 
tive. To  understand  this  subjective  attitude  to  objec- 
tive morality,  it  is  necessary  to  analyze  the  latter,  and 
show  how  the  subjective  conception  and  realization  of  it 
agree  with  that  theory  of  the  will  which  has  been  de- 
veloped in  the  foregoing  discussion,  and  which  knows 
only  action  of  the  subject  for  his  own  sake.  To  this 
problem  will  the  ninth  chapter  be  devoted,  — The  Theory 
of  Morality. 

After  having  determined  the  concept  of  ethical  self- 
assertion,  we  shall  take  up  the  two  forms  in  which  it 
shows  its  activity;  the  Feeling  of  Duty  (Chapter  X),  and 
Love  (Chapter  XI). 

Having  in  this  way  reached  the  aim  we  set  ourselves 
above  (p.  43),  viz.,  to  gain  an  idea  of  all  the  purposes 
for  which  man  can  become  active,  we  shall  thereupon  at 
the  end  of  the  first  part  again  take  up  the  question  of 
the  will  which  was  interrupted  above,  in  order  to  bring 
it  to  a  conclusion  by  analyzing  the  two  concepts.  Interest 
and  Purpose  (Chapter  XH).  The  application  to  law 
of  the  results  gained  in  this  whole  first  part  of  the  book 
will  be  left  for  the  second  part. 


Hi'         EGOISTICAL  SELF-ASSERTION  47 


CHAPTER  V 

THE   PURPOSES  OF   EGOISTICAL  SELF- 
ASSERTION 

§1.  PHYSICAL  SELF-ASSERTION.—  §2.  ECONOMIC  SELF- 
ASSERTION. —§  3.  PROBLEM  OF  PROPERTY.  —  JURISTIC 
FORM.  —  §  4.  CONCEPT  OF  RIGHT  AND  DUTY.  —  §  5.  WORK. 
—  §  6.  EXCHANGE.  —  §  7.  CONTRACT  —  THE  LAW.  — 
§8.     JURISTIC   SELF-ASSERTION. 

§  1.  Physical  Self-assertion.  Egoistical  self-asser- 
tion has  for  its  basis  the  thought  of  egoism,  viz.,  that  the 
individual  exists  for  himself,  and  has  the  purpose  of  his 
existence  in  and  of  himself.  Of  the  three  directions  or 
kinds  of  self-assertion  which  we  distinguished  above 
(p.  44)  the  physical  contains  the  lowest  form  in  which 
purpose  first  appears  in  man ;  it  takes  us  back  to  the  stage 
in  which  we  first  meet  it  in  animate  creation,  —  the  stage 
of  the  animal. 

The  first  object  of  will  is  pointed  out  by  nature  to 
man  quite  as  much  as  to  the  animal,  —  it  is  the  preser- 
vation of  his  own  existence. 

Discomfort  and  pain  teach  him  what  is  repugnant  to 
his  nature,  and  urge  him  to  its  avoidance;  comfort  and 
pleasure  and  the  feeling  of  health  furnish  him  with  the 
assurance  that  he  responds  rightly  to  the  conditions  of 
his  life.  But  the  manner  in  which  man  meets  this  prob- 
lem assumes  with  the  aid  of  the  human  intellect  a  form 
different  from  that  in  the  animal.  I  mean  not  only 
knowledge  and  culture  of  the  finer  conditions  of  life, 
but  the  retrospect  which  is  granted  him  into  the  past 
and  the  prospect  into  the  future.     The  physical  self- 


48  THE   CONCEPT   OF   PURPOSE        [Ch.  V 

preservation  of  the  animal  is  with  few  exceptions  calcu- 
lated for  the  next  moment  —  once  their  hunger  is  stilled 
most  animals  care  not  for  the  coming  day  —  and  the 
animal's  sense  of  this  is,  as  a  rule,  guided  only  by  his 
own  experience.  In  man,  on  the  contrary,  it  is  based 
not  only  on  his  own  experience,  but  also  on  that  of 
others,  and  not  merely  on  the  experience  of  a  few  indi- 
viduals, but  on  that  of  the  whole  race;  and  in  his  case 
it  is  not  exhausted,  as  in  the  case  of  the  animal,  in  a 
concern  for  the  present,  but  in  the  present  it  is  already 
thoughtful  of  the  future,  especially  in  the  way  of  secur- 
ing his  future  means  of  subsistence.  This  concern  for 
the  coming  day,  called  forth  by  the  bitter  experiences 
which  humanity  underwent  at  a  time  when  nature  no 
longer  offered  unsought  everything  in  sufficient  abun- 
dance, is  the  original  practical  moti\e  of  property,  i.e., 
of  efforts  directed  not  merely  to  the  acquisition  of  the 
momentary  need,  but  to  the  acquisition  and  storing  up 
of  means  of  support  not  needed  until  the  future. 

§  2.  Economic  Self-assertion.  This  brings  us  to  the 
second  class  of  self-assertion,  the  economic.  Of  this  we 
find  in  the  animal  world  only  slight,  isolated  tendencies. 
In  accordance  with  its  conceptual  and  historical  origin,  it 
is  connected  with  the  purpose  of  physical  self-preserva- 
tion, and  in  the  same  measure  as  the  purposes  of  life 
are  advanced  it  also  acquires  higher  aims  and  problems. 
Securing  the  future  life  becomes  securing  one's  future  life 
in  comfort;  procuring  the  necessary  and  indispensable 
prepares  the  ground  for  what  is  dispensable  but  agree- 
able; the  satisfaction  of  the  palate  is  followed  by  that 
of  the  eye,  the  soul,  and  the  intellect.  Everywhere 
property  takes  its  stand  by  the  side  of  culture,  ever 
informing  of  new  wants  and  purposes,  as  the  ready  ser- 
vant who  procures  the  necessary  means  for  everything. 
There  is  no  purpose,  no  problem  belonging  to  individual, 


§  4  ]   '        EGOISTICAL  SELF-ASSERTION  49 

society,  or  State,  which  would  not  be  furthered  in  the 
most  effective  way  by  property;  there  is  no  virtue,  no 
vice,  either  of  the  individual  or  of  the  nation,  which  could 
not  find  expression  in  property.  The  manner  in  which  a 
man  uses  his  property  is  one  of  the  surest  standards  for 
judgment  of  his  character  and  degree  of  culture  —  in  the 
purposes  for  which  he  spends  his  money  he  reveals  him- 
self. The  means  by  which  he  earns  it  lie  only  too  often 
not  in  his  power,  but  the  manner  in  which  he  spends  it, 
as  a  rule,  is  a  matter  of  his  free  resolve.  No  fine  phrase, 
nor  sublime  speech,  nor  outpouring  of  feelings  in  words 
and  tears  has  such  convincing  force  as  the  dollar  which 
issues  from  the  pocket;  a  man's  cashbook  occasionally 
tells  more  concerning  his  true  character  than  his  diaries. 

§  3.  Property.  This  promotion  of  property  from  its 
original  function  of  securing  the  physical  existence  to 
this  its  all-embracing  mission  of  civilization  and  ethical 
significance  would  not  at  all  have  been  thinkable  if  it 
had  not  continually  retained,  exclusively  or  predomi- 
natingly, its  original  function  of  prolonging  physical 
existence  for  a  considerable  fraction  of  the  population. 
The  power  of  property  in  the  hands  of  him  who  has  more 
than  is  needed  for  securing  his  physical  necessities  or 
even  a  comfortable  living  depends  upon  others  having 
less;  who,  being  obliged  to  work  in  order  to  supply  what 
they  lack,  must  seek  in  continuous  employment  the 
means  of  subsistence. 

§  4.  Right  and  Duty.  The  purpose  of  life's  mainte- 
nance produced  property  —  for  without  property  there 
is  no  secure  future  for  existence;  the  purpose  of  the  two 
conjoined  leads  to  Law  —  without  law  there  is  no  secur- 
ing life  and  property. 

The  form  by  which  law,  or  right  regarded  objectively, 
affords  its  protection  to  both  interests  is,  as  is  well  known, 
by  right  in  the  subjective  sense.     To  have  a  right  means, 


50  THE   CONCEPT  OF   PURPOSE        [Cn.V 

there  is  something  for  us,  and  the  power  of  the  State 
recognizes  this  and  protects  us.  Now  that  which  exists 
for  us  may  be, 

(1)  Ourselves.  The  legal  expression  for  this  is  the  right 
of  personality.  The  ethical  ground  of  this  concept  is  the 
principle,  man  is  an  end  in  himself.  The  slave  is  not  for 
himself,  but  for  his  master;  he  is  not  an  end  in  himself, 
but  exclusively  a  means  for  the  purposes  of  others. 

That  which  exists  for  us  may  be, 

(2)  A  Thing.  The  expression  which  designates  this 
relation  of  the  thing  to  our  purposes  is  the  right  to  the 
thing,  or  ownership  in  the  widest  sense. ^ 

That  which  exists  for  us  may  be, 

(3)  A  Person.  He  may  exist  for  us  either  as  a  per- 
sonality in  its  entirety,  —  with  reciprocal  relations  (the 
legal  relations  of  the  family),  or  in  reference  to  particu- 
lar acts  (right  "in  personam"). 

That  which  exists  for  us  may  be  finally, 

(4)  The  State.  The  legal  expression  for  this  subser- 
viency of  the  State  to  our  purposes  is  citizenship. 

Opposed  to  Right  is  Duty.  The  former  tells  us  that 
there  is  something  for  us,  the  latter  that  we  are  for 
another,  but  not  in  the  sense  that  the  entire  purpose  of 
our  being  is  exhausted  in  it  —  in  that  case  the  relation 
would  be  slavery  —  but  in  the  sense  that  this  subser- 
viency forms  only  a  particular  incident  in  the  purpose  of 
our  being. 

Accordingly,  the  position  of  a  person  in  the  world 
depends  upon  three  conditions,  the  two  from  which  he 
derives  his  right,  and  a  third  upon  which  the  world  bases 
his  duty  to  it: 

'  This  is  the  sense  in  which  the  philosophers  and  poUtical  econo- 
mists generally  use  the  expression.  It  then  embraces  property  in  the 
sense  of  the  jurist,  possession,  rights  in  things  belonging  to  another, 
and  the  right  of  succession. 


§6]     *       EGOISTICAL  SELF-ASSERTION  51 

(1)  /  exist  for  myself; 

(2)  The  world  exists  for  me; 

(3)  /  exist  for  the  world. 

Upon  these  three  concise  statements  rests  the  entire 
scheme  of  law,  and  not  merely  that  of  law,  but  the  whole 
ethical  world-order,  our  private  life,  life  in  the  family, 
business  relations,  society,  the  State,  international  inter- 
course, the  mutual  relations  of  peoples,  those  living 
contemporaneously  as  well  as  those  long  departed  (Chap- 
ter VI). 

§  5.  Work.  Let  us  return  now  to  property,  the  occa- 
sion of  this  interpolation.  The  concept  of  property 
contains  from  the  legal  point  of  view  the  principle  that 
nature  exists  for  the  sake  of  man.^  But  nature  does  not 
presenther  giits,  human  labor  and  exertion  are  needed  to 
win  them  from  her.  If  a  person's  own  force  is  not  suffi- 
cient, he  must  have  the  help  of  another,  which  in  the 
long  run  he  can  succeed  in  obtaining  only  in  return 
for  equivalent  service  by  remuneration.  The  law  recog- 
nizes the  necessity  for  this  extension  of  property  to  the 
labor-power  of  others  by  granting  its  protection  to  con- 
tracts directed  thereto.  So  in  addition  to  the  thing,  work 
too  is  introduced  into  the  system  of  proprietary  right. 

Work  keeps  step  with  property,  which  has  gradually 
raised  itself  to  ever  higher  purposes  from  the  most  press- 
ing, but  at  the  same  time  the  lowest,  purpose,  of  care  for 
physical  life.  Work,  toa,  begins  with  the  most  primi- 
tive form,  viz.,  the  cultivation  of  the  field  and  the  pro- 
curing of  that  which  belongs  to  physical  existence;  and 
it  advances  with  the  progress  of  culture  to  ever  higher 
achievements  and  problems. 

§  6.  Exchange.  The  laborer  takes  money  in  exchange 
for  labor  power,  the  other  party  takes  labor  power  in 

*  The  saying  of  the  Roman  jurist:   "Omnes  fructus  rerum  natura 
hominum  gratia  comparavit,"  Dig.  22.  1.  28  §  1. 


52  THE   CONCEPT   OF   PURPOSE        [Ch.  V 

exchange  for  mone>- ;  both  have  more  need  of  that  which 
they  receive  than  of  that  which  they  have.  Reward  is 
the  means  by  which  the  surplus  labor  power  which  other- 
wise would  remain  idle  or  but  imperfectly  realized, 
is  directed  where  it  can  find  the  best  use  in  the  interests 
of  the  laborer  as  well  as  of  society.  The  same  process  is 
repeated  in  the  case  of  things,  when  one  thing  is  exchanged 
for  another  (contract  of  exchange  in  the  legal  sense)  or 
for  money  (purchase).  On  both  sides  the  process  is 
based  upon  giving  that  for  which  one  has  either  no  use 
at  all,  or  not  the  right  use,  in  return  for  that  which  one 
may  better  use.  Exchange  as  a  form  of  commerce  has 
therefore  as  its  object  the  directing  of  every  thing  where 
it  will  do  that  for  which  it  was  intended.  No  thing  per- 
manently remains  where  it  misses  its  economic  destiny 
to  serve  man;  every  thing  finds  its  right  owner;  the 
anvil  finds  the  blacksmith,  the  fiddle  the  musician,  the 
worn  coat  the  poor  man,  a  Raphael  the  picture  gallery.* 
Exchange  may  be  defined  as  economic  providence,  which 
brings  everything  (object,  labor  power)  to  the  place  of 
its  destination. 

In  speaking  of  the  destination  of  an  object,  we  have 
transferred  a  concept  which  according  to  our  own  doc- 
trine is  limited  to  persons,  viz.,  the  concept  of  purpose,  to 
a  thing.  Is  not  this  inconsistent?  The  answer  is  ready 
at  hand. 

Our  use  of  this  expression  indicates  that  the  person 
sees  in  the  thing  an  available  means  for  his  purposes; 
he  therefore  puts  into  the  thing  as  its  destination,  its 

'  To  be  sure,  within  the  sphere  where  it  can  seek  at  all.  A  Raphael 
can  seek  its  owner  in  the  whole  world,  the  anvil  can  look  for  him  only 
among  the  blacksmiths  of  the  neighborhood.  The  same  is  true  of 
labor  power.  The  ordinary  factory  laborer  cannot  look  so  far  as 
the  trained  technician,  the  seamstress  not  so  far  as  the  opera  singer, 
the  village  schoolmaster  not  so  far  as  the  scholar. 


§6]  EGOISTICAL  SELF-ASSERTION  53 

purpose,  that  which  he  himself  wants  to  make  of  it. 
He  substitutes  his  subjective  intention  for  the  objective 
availability  of  the  thing.  The  economic  purpose  of 
things  is  nothing  else  than  the  availability  for  human 
purposes  which  the  things  exhibit  from  the  standpoint 
of  the  subjective  economical  consciousness  of  purpose, 
whether  this  availability  was  present  in  them  from  the 
beginning,  or  was  attached  to  them  by  human  labor. 
Usefulness,  availability,  fitness,  destination,  purpose  of 
a  thing,  and  whatever  other  turn  of  expression  one  may 
use,  depend  upon  the  operation  proved  above  (p.  22), 
in  connection  with  the  investigation  of  purpose  in  the 
animal;  viz.,  reference  to  the  self,  or  reference  to  pur- 
pose. These  terms,  however,  are  based  not  upon  a  con- 
crete judgment,  but  upon  an  abstract,  i.e.,  upon  a  uni- 
versal and  generalizing  judgment  which  is  independent 
of  the  particular  case.  The  purposes  of  things  are 
nothing  more  than  the  purposes  of  the  person  by  whom 
they  are  applied  —  a  gradual  extension  of  the  horizon 
of  purpose  in  man  signifies  historically  the  same  fact  for 
things. 

As  the  contract  of  exchange  brings  to  each  party  that 
which  possesses  for  his  purposes  a  relatively  higher 
availability  than  is  present  in  what  he  has  himself,  it 
may  be  designated  from  the  standpoint  of  the  person  as 
an  act  of  economical  self-assertion.  And  the  business  of 
exchange,  which  contains  the  regulated  order  of  these 
single  acts,  may  accordingly  be  designated  as  the  system 
or  organization  of  the  economic  self-assertion  of  man. 
The  more  the  business  of  exchange  develops,  the  wider 
the  domain  over  which  it  extends,  and  the  greater  the 
quantity  of  goods,  skill,  etc.,  which  it  can  realize,  the 
more  feasible  does  the  economic  self-assertion  of  the  indi- 
vidual thereby  become,  and  the  more  is  it  facilitated  and 
furthered.     A  new  article  of  trade  furnishes  thousands 


54  THE  CONCEPT  OF   PURPOSE        [  Ch.  v 

of  people  bread;  the  opening  or  shortening  of  a  road,  the 
perfection  of  means  of  transportation,  a  cheap  freight 
rate,  —  in  short,  everything  which  serves  to  make  it 
possible  for  things  and  labor  power  to  seek  employment 
in  wider  circles,  spreads  life  and  well-being  in  regions 
where  otherwise  want  and  misery  would  rule ;  a  man  who 
would  formerly  have  star\^ed  becomes  a  well-to-do  man. 

§  7.  Contract.  The  form  of  exchange  is  the  con- 
tract. The  jurist  defines  contract  as  the  union  of  two 
minds  in  an  expression  of  the  will  ("consensus").  From 
the  juristic  standpoint  this  is  perfectly  correct,  for  the 
element  of  the  contract  which  creates  obligation  lies  in 
the  will.  But  for  us  who  have  in  view  through  this 
whole  investigation,  not  the  will  as  such,  but  the  deter- 
mining element  of  it,  viz.,  purpose,  the  matter  assumes 
another,  and  as  I  believe,  more  instructive  form.  When 
purpose  determines  the  will,  then  the  circumstance  that 
the  wills  of  two  or  more  persons  meet  in  the  same  point 
("convenire,"  "conventio,"  "uberein-[zusammen-]  kom- 
men,"  "Ubereinkunft")  contains  the  proof  that  their 
purposes  or  interests  meet  in  this  point,  that  the  intended 
action  in  the  future,  whether  of  one  party  or  of  both,  is 
calculated  to  attain  this  coincident  purpose.  With  the 
delivery  of  the  object  sold  in  return  for  the  price  agreed 
upon,  both  the  buyer  and  the  seller  attain  what  they 
intend.  Through  the  contract  they  give  evidence  of  the 
coincidence  of  their  interests  (p.  28),  not,  however,  as  an 
object  of  theoretical  knowledge,  as  is  the  case  when 
they  are  aware  that  their  several  speculations  are  de- 
pendent upon  the  occurrence  of  one  and  the  same 
combination  of  circumstances,  but  as  the  practical  aim 
of  a  co-operation  for  which  they  both  unite. 

But  the  interests  which  now  meet  may  subsequently 
diverge.  In  such  a  case  the  one  party,  whose  interest 
has  in  the  meantime  become  different,  will  wish  that  the 


§71-         EGOISTICAL  SELF-ASSERTION  55 

performance  of  the  contract  remain  unfulfilled,  whereas 
the  other  party,  whose  interest  has  remained  the  same 
as  at  the  conclusion  of  the  contract,  is  just  as  eager  to 
have  it  carried  out  as  before.  Now  if  the  law  did  not 
step  in  with  its  constraining  power,  the  law  which  upholds 
a  contract  once  concluded,  the  former  understanding 
would  not  come  to  execution  on  account  of  the  want  of 
present  agreement  of  interests.  The  recognition  of  the 
binding  force  of  contracts,  considered  from  the  stand- 
point of  the  idea  of  purpose,  means  nothing  else  than 
securing  the  original  purpose  against  the  prejudicial  influ- 
ence of  a  later  shifting  of  interest,  or  of  a  change  of  judg- 
ment touching  his  interest  on  the  part  of  one  of  the 
parties.  In  other  words,  it  means  that  a  change  of  interest 
has  juristically  no  forced  He  who  insists  on  carrying  out 
the  original  contract  proves  thereby  that  his  interest  has 
remained  the  same;  the  opponent,  who  refuses,  proves 
that  his  interest,  or  his  judgment  thereof  has  changed; 
if  the  same  thing  happens  in  the  case  of  the  other  party, 
the  contract  is  not  carried  out,  the  interest  determines  the 
execution  as  well  as  the  conclusion  of  all  contracts. 

The  person,  i.e.,  the  purpose  of  his  physical  self-pres- 
ervation, produced  property,  i.e.,  the  purpose  of  the  regu- 
lated and  assured  realization  of  that  purpose.  The  two 
together   lead    again   to   law,   i.e.,   to   the   securing   of 

^  Where  the  law  exceptionally  allows  the  extinction  of  a  contract 
by  reason  of  a  later  change  of  circumstances  (for  example,  notice 
given  of  the  cessation  of  agency  or  of  the  dissolution  of  partnership; 
demand  of  the  restitution  of  a  deposit  before  the  expiration  of  the 
time  agreed  upon;  extinction  of  a  contract  for  hire;  Cod.  4.  65.  3.), 
it  makes  the  maintenance  of  the  contract  for  the  party  entitled  to  the 
above  privilege  a  pure  question  of  interest.  Not  the  former  condi- 
tion of  the  interest,  but  the  present,  is  made  to  be  the  determining 
factor  for  him  —  a  form  of  the  contractual  relation  which  dogmatic 
jurisprudence  names,  it  is  true,  in  special  cases,  but  does  not  take 
into  consideration  in  the  general  theory  of  contract. 


5G  THE   CONCEPT   OF   PURPOSE        [Ch.  V 

their  mutual  purposes,  otherwise  solely  dependent  upon 
the  physical  strength  of  the  subject,  by  the  power  of 
the  State.  The  concept  of  law  includes  therefore  two 
elements;  a.  system  oi  purposes,  and  a  system  of  their 
realization.  As  person  and  property  presuppose  the 
law,  so  does  the  law  presuppose  the  State.  The  (prac- 
tical) motive  (impulse)  of  purpose,  not  the  (logical) 
moti\e  (implication)  of  the  concept,  presses  with  necessity 
from  one  to  the  other. 

§  8.  Juristic  Self-assertion.  The  law  embraces  the 
person  on  all  sides  of  his  existence.  The  assertion  of 
this  position  granted  him  by  the  law  we  call  the  juristic 
self-assertion  of  the  person.  This  self-assertion  extends 
to  everything  that  the  person  is  and  has  —  life,  honor, 
property,  family,  legal  status.  In  reference  to  property, 
it  seems  to  comprehend  the  whole  of  economic  self- 
assertion.  But  the  two  do  not  coincide.  The  purpose 
of  economic  self-assertion,  i.e.,  of  acquisition  of  prop- 
erty, is  not  the  right  to  the  thing,  but  the  thing  itself; 
otherwise  no  thief  would  steal,  for  theft  does  not  give 
him  the  right,  but  the  thing.  The  value  of  the  thing, 
therefore,  controls  the  purely  economic  purpose  of  the 
acquisition  of  the  thing,  and  the  means  put  forth  in 
attaining  this  purpose.  This  applies  to  the  thief  also  — 
he  will  not  expose  himself  to  the  same  danger  for  a 
farthing  as  he  will  for  a  thousand  dollars,  any  more 
than  a  laborer  puts  forth  the  same  exertion  for  one  dollar 
as  he  does  for  ten.  The  same  point  of  view  holds  for 
the  economic  preservation  of  the  thing  ■ —  one  does  not 
stake  ten  dollars  to  procure  a  dollar  —  for  the  mainte- 
nance of  the  thing,  therefore,  the  economic  value  of  it  is 
quite  decisive.  But  for  the  maintenance  of  the  right 
to  the  thing  it  is  not  sufficient ;  it  may  be,  but  it  need  not. 
The  struggle  for  the  right  to  a  thing  may,  for  example, 
take  a  form  in  which  it  involves  a  person's  sympathies. 


§8]  EGOISTICAL  SELF-ASSERTION  57 

In  this  case  it  is  no  longer  a  question  of  the  thing,  but  of 
the  person,  of  his  self-assertion  as  a  holder  of  rights; 
the  economic  element  is  just  as  immaterial  in  the  matter 
as  in  a  violation  of  the  law  which  is  aimed  directly  at  the 
person,  viz.,  an  insult  to  one's  honor.  The  detailed 
treatment  which  I  have  devoted  to  juristic  self-assertion 
in  my  "Kampf  ums  Recht"  (7th  ed.  Vienna  1883),^ 
excuses  me  from  a  lengthy  exposition  in  this  place. 

We  have  now  reached  a  conclusion.  The  considera- 
tion of  the  three  directions  of  egoistical  self-assertion 
has  brought  before  us  not  merely  the  main  purposes  of 
individual  existence  turned  toward  itself,  but  it  has 
shown  us  at  the  same  time  in  these  individual  purposes 
the  practical  impulse  of  the  concept  of  purpose.  It 
presses  ahead  irresistibly  from  one  concept  to  another, 
from  person  to  property,  from  these  two  to  law,  from  law 
to  the  State  —  there  is  no  halt  in  this  evolution  of  the 
idea  of  purpose  until  the  highest  point  is  reached. 

We  learn  from  this  that  when  we  placed  ourselves  in 
the  foregoing  upon  the  standpoint  of  the  individual, 
this  did  not  mean,  as  we  have  already  remarked  above 
(p.  44),  that  we  considered  it  thinkable  to  isolate  the 
individual  by  himself  —  in  that  case  we  should  have 
had  no  right  to  place  the  two  dicta,  "The  world  exists 
for^me,"  and  "I  exist  for  the  world,"  beside  the  first, 
"I  exist  for  myself."  What  we  did  was  to  indicate  the 
attitude  which  the  individual  takes  toward  the  world, 

^  I  am  innocent  of  the  frequent  caricature  of  my  opinion  as  if  I 
held  that  one  should  carry  on  a  lawsuit  for  every  disputed  right,  for 
I  have  stated  with  sufficient  clearness  the  conditions  under  which 
alone  I  regard  it  a  duty  to  assert  one's  right.  But  of  what  use  is  all 
objective  clearness  when  there  is  subjective  darkness  in  the  mind  of 
the  reader;  when  people  presume  to  judge  a  work,  who  cannot  read, 
who  do  not  know  when  they  get  to  the  end  of  the  book  what  they  read 
at  the  beginning,  and  impute  absurdities  to  the  author  for  which 
they  should  hold  their  own  careless  reading  and  thinking  responsible? 


58  THE   CONCEPT   OF   PURPOSE        [Ch.  V 

when  he  considers  the  latter  solely  from  the  point  of 
\iew  of  his  own  interest.  How  this  interest  in  making 
the  world  sersaceable  to  it  at  the  same  time  makes  itself 
thereby  serviceable  to  the  word,  will  be  shown  in  the 
sequel. 


5  1]"  LIFE  THROUGH  OTHERS  59 


CHAPTER  VI 

LIFE  THROUGH  AND  FOR  OTHERS,  OR 
SOCIETY  1 

§  1.  SOCIAL  FORM  OF  HUMAN  EXISTENCE.  —  §  2.  THE 
UNINTENTIONAL  INFLUENCE  OF  ONE  UPON  THE  OTHER.  — 
§3.  CONTINUATION  OF  INFLUENCE  BEYOND  LIFE.—  §4. 
THE  RIGHT  OF  INHERITANCE  IN  ITS  RELATIONS  TO  THE 
HISTORY  OF  CULTURE.—  §5.  SOCIAL  LIFE  AS  A  LAW  OF 
CULTURE.  —  §  6.  CONCEPT  OF  SOCIETY.  —  §  7.  DIFFER- 
ENCE BETWEEN  SOCIETY  AND  STATE.  —  §  8.  PROBLEM  OF 
SOCIAL   MOVEMENT. 

§  1.  Social  Form  of  Human  Existence.  Our  whole 
culture,  our  whole  history,  rests  upon  the  realization  of 

^  In  the  first  edition,  this  chapter  began  with  a  discussion,  of  the 
complete  untenableness  of  which  I  have  become  convinced  in  the 
meantime,  and  I  can  scarcely  comprehend  now  how  I  could  have 
allowed  myself  to  be  carried  away  by  it.  It  had  as  its  subject  the 
statement  that  an  animal  uses  other  animals  only  as  means  for  its 
purposes  but  does  nothing  for  their  purposes,  and  that  herein  lies 
one  of  the  main  differences  between  animal  and  human  life.  The 
proofs  to  the  contrary,  for  example  the  care  of  animals  for  their  own 
young  and  even  for  the  helpless  young  of  other  animals,  are  so 
clearly  evident  that  there  is  no  need  at  all  of  mentioning  them. 
Even  the  idea  of  society,  i.e.,  of  a  regulated  living  together  in  com- 
mon for  the  purpose  of  pursuing  common  ends,  already  appears  in 
the  animal  world,  and  even  the  idea  of  an  experience  of  the  species, 
which  I  formerly  denied.  Animals,  too,  at  least  some,  learn  one 
from  the  other,  communicate  their  experiences  to  each  other  and 
apply  them.  For  animals  also  history  is  a  teacher.  My  former 
opinion  that  the  animal  has  its  experience  only  for  itself,  and  that 
with  every  animal  the  same  game  begins  over  again  to  end  with  it 
again  —  without  result  for  the  species  —  may  apply  to  some  classes 
of  animals;  in  the  general  way  in  which  I  maintained  it,  it  is  simply 
untrue. 


60  THE   CONCEPT  OF   PURPOSE       [Ch.  VI 

individual  human  existence  for  the  purposes  of  the 
whole.  There  is  no  human  Hfe  which  exists  merely  for 
itself,  every  one  is  at  the  same  time  for  the  sake  of  the 
world ;  every  man  in  his  place,  however  limited  it  may 
be,  is  a  collaborator  in  the  cultural  purposes  of  human- 
ity. Even  if  he  is  the  most  insignificant  laborer,  he 
takes  part  in  one  of  its  problems,  and  even  if  he  does 
not  work  at  all,  he  helps  along  in  his  every  day  speech, 
for  by  doing  this  he  helps  to  keep  alive  the  words  of  the 
language  handed  down  to  him,  and  transmits  them  in  his 
turn.  I  cannot  imagine  a  human  life  so  poor,  so  devoid 
of  content,  so  narrow,  so  miserable,  that  it  is  not  of  some 
good  to  some  other  life ;  even  such  a  life  has  not  seldom 
borne  the  world  the  richest  fruit.  The  cradle  of  the 
greatest  man  often  stood  in  the  poorest  hut;  the  woman 
who  gave  him  life,  who  nursed  and  cherished  him,  has 
done  humanity  a  greater  service  than  many  a  king 
upon  his  throne.  What  can  a  child  be  to  a  child? 
Often  more  than  parents  and  teachers  combined. 
In  playing  with  his  companions  the  child  often  learns 
more  things  and  more  useful  for  practical  life  than 
out  of  the  "teachings  of  wisdom  and  virtue."  In 
the  ball  of  his  comrade  which  he  tries  to  appropriate 
he  makes  the  first  practical  acquaintance  with  the 
concept  of  property,  and  the  deterring  impression  of 
the  bad  habits  of  his  comrades  preaches  to  him  his  first 
morals. 

§  2.  Unintentional  Influence  of  One  upon  the  Other. 
No  one  exists  for  himself  alone,  any  more  than  through 
himself  alone,  but  every  one  exists  at  the  same  time  for 
others,  just  as  he  exists  through  others,  it  matters  not 
whether  consciously  or  unconsciously.  Just  as  a  body 
radiates  the  heat  which  it  has  received  from  outside,  so 
man  radiates  the  intellectual  or  ethical  fluid  which  he  has 
breathed  in  the  cultural  atmosphere  of  society.    Life  is  a 


§  3]  LIFE  THROUGH  OTHERS  61 

constant  "inspiration,"  literally,  breathing  in:  receiving 
from  the  environment  and  giving  back  to  it ;  this  holds 
true  equally  of  physical  and  spiritual  life.  Every  rela- 
tion of  our  human  life  contains  such  an  element  of 
"being  for  each  other,"  most  conditions  of  life  contain  a 
reciprocal  or  mutual  element.  The  wife  exists  for  the 
husband,  but  at  the  same  time  the  husband  for  the  wife; 
the  parents  for  the  children,  but  the  children  also  for 
the  parents.  Servants  and  masters,  master  workmen 
and  journeymen,  the  laborer  and  the  employer  of  labor, 
friend  and  friend,  the  community  and  its  members,  the 
State  and  its  citizens,  society  and  the  individual,  nation 
and  nation,  and  the  particular  nation  and  humanity  - — 
who  can  name  a  relation  in  which  the  one  does  not  exist 
for  the  other  and  the  latter,  at  the  same  time,  also  for 
the  former?  And  quite  apart  from  these  permanent 
relations  which  make  up  the  standing  forms  of  our  life, 
what  does  not  man  sometimes  effect  by  his  mere  exist- 
ence, by  his  example,  by  his  personality,  —  nay,  by  a  word 
uttered  at  random!  In  short,  wherever  I  turn  my 
glance,  everywhere  is  the  same  phenomenon;  no  one 
exists  for  himself  alone ;  every  one  exists  at  the  same  time 
for  others,  let  us  say,  for  the  world.  Only  his  world,  as 
well  as  the  measure  and  the  duration  of  the  influences 
which  he  exerts  upon  it,  is  different  from  that  of  others. 
The  world  of  the  one  ends  with  his  house,  his  children, 
friends,  clients;  the  world  of  the  other  extends  also  to  a 
people,  to  humanity. 

§  3.  Continuation  of  Influence  beyond  Life.  The  fruit 
of  one  sort  of  existence  for  society  is  summed  up  in  the 
amount  of  potatoes,  coats,  books,  etc.,  which  man  has 
furnished  it,  whereas  the  fruit  of  the  other  kind,  the 
activity  of  a  great  poet,  artist,  technician,  scholar,  states- 
man, may  assume  dimensions  which  mock  at  all  attempts 
to  measure  them.     For,  whereas  with  the  ordinary  man 


62  THE   CONCEPT   OF   PURPOSE       [Ch.  VI 

death  quickly  destroys  the  traces  of  his  existence,  the 
existence  of  a  historical  personaUty  unfolds  itself  only 
after  his  death  to  its  full  power  and  majesty,  to  e\er 
wnder  and  richer  effects.  Hundreds  and  thousands  of 
years  after  the  ashes  of  the  great  man  have  long  been 
scattered  to  all  the  winds,  his  spirit  unceasingly  works 
for  the  cultural  purpose  of  humanity.  Homer,  Plato, 
Aristotle,  Dante,  Shakespeare  —  and  who  can  name 
all  the  heroes  of  the  spirit,  of  art  and  of  science  of  whom 
the  same  is  true?  —  all  of  them  are  still  standing  today 
in  our  midst,  with  living,  unimpaired,  nay,  increased 
power  • —  they  have  sung,  taught,  thought  for  all 
humanity. 

§  4.  The  Right  of  Inheritance  in  its  Relations  to  the 
History  of  Culture.  With  this  continued  influence  of  an 
existence  after  it  has  itself  come  to  an  end,  we  touch  upon 
that  form  of  existence  for  others  upon  which  the  security 
and  the  progress  of  our  whole  culture  depends.  The 
juristic  expression  for  this  is  Inheritance.  The  idea  of 
the  right  of  inheritance  is,  the  fruit  of  my  existence  does 
not  end  with  me,  it  benefits  another.  The  jurist  knows 
the  right  of  inheritance  only  so  far  as  it  has  property 
as  its  object,  inheritance  signifies  for  him  only  the  eco- 
nomic output  of  the  person,  the  sum  of  his  life  expressed 
in  dollars  and  cents ;  but  for  the  historian  and  the  philoso- 
pher the  concept  of  inheritance  extends  as  far  as  human 
culture.  The  institution  of  succession  is  the  condition 
of  all  human  progress;  succession,  in  the  history  of 
culture,  signifies  that  the  successor  works  with  the 
experiences,  with  the  spiritual  and  ethical  capital  of  his 
predecessor  —  history  is  the  right  of  inheritance  in  the 
life  of  humanity. 

§  5.  Social  Life  as  a  Law  of  Culture.  There  are 
therefore  two  directions  in  which  "being  for  others"  is 
carried  out;  the  influence  of  our  existence  upon  our 
contemporaries,  and  upon  posterity. 


§  5  ]  LIFE  THROUGH  OTHERS  63 

The  measure  of  the  two  gives  us  the  standard  for  the 
value  of  human  existence,  of  individuals  as  well  as  of 
nations.  The  concept  of  value  is,  as  is  well  known, 
relative;  it  means  the  fitness  of  a  thing  for  some  purpose. 
When  applied  to  human  life  the  question  of  value  is, 
what  benefit  to  society  accrues  from  it?  And  society 
measures  the  value  of  human  life  accordingly.  A  criterion 
of  the  value  which  society  puts  upon  our  life  is  its  knowl- 
edge of  our  name.  Our  name  in  the  world  extends  as  a 
rule  so  far,  and  lasts  so  long,  as  our  significance  for  the 
world.  When  the  names  of  historical  personalities  con- 
tinue, it  is  merely  the  proof  that  the  personaUties  them- 
selves are  still  alive  for  the  world.  For  the  continuance 
of  a  historical  name,  i.e.,  fame,  is  not  merely  a  tribute  of 
gratitude  which  the  world  pays,  but  denotes  continued 
activity  by  its  bearer.  How  great  intrinsically  any  one 
was  is  quite  an  indifferent  matter  to  the  world;  it  asks 
for  and  retains  only  what  he  was  to  it.  In  the  book  of 
history  name  signifies,  as  once  "nomen"  did  in  the  Roman 
housekeeping  book,  the  en!ry  of  a  debt.  The  genius 
who  did  nothing  for  the  world  will  have  not  the  smallest 
item  to  his  credit  in  the  account  book  of  history.  That 
the  familiarity  of  a  name  is  a  sign  of  the  significance  of 
its  bearer,  holds  also  for  the  small,  and  even  the  smallest 
orbit  of  civic  life.  Here,  too,  the  knowledge  of  a  name 
extends  only  so  far  as  society  feels  the  significance  for 
itself  of  its  bearer.  The  name  of  the  ordinary  laborer  in 
a  factory  is  known  only  to  his  comrades  and  neighbors, 
that  of  the  owner  of  the  factory  is  known  in  the  entire 
district. 

A  celebrated  name  is  therefore  an  evidence  not  merely 
that  some  one  has  become  something  to  society  or  the 
world,  but  also  that  the  latter  is  aware  of  it  —  it  is  the 
acknowledgment  of  its  debt  through  the  issue  of  a  bill  of 
exchange  for  acceptance.    The  debt  exists  also  without 


64  THE  CONCEPT  OF  PURPOSE      [Ch.  vi 

the  bill  of  exchange,  but  the  bill  of  exchange  gives  the 
claim  the  character  of  incontestable  validity.  Its  value 
depends  not  upon  the  honor  and  recognition  with  which 
it  is  redeemed,  but  upon  the  assurance  which  it  gives 
its  bearer  that  his  life  has  not  been  lost  to  humanity. 
Society  does  not  inquire  whether  he  was  actuated  by 
ambition,  fame,  or  the  desire  to  serve  humanity,  it  looks 
solely  to  the  result,  not  to  the  motive.  And  she  is  right 
in  doing  so.  For  in  crowning  those  also  who  were  merely 
interested  in  the  reward  which  she  pays  them,  she 
makes  sure  of  them,  too,  for  her  purposes;  only  he  can 
grudge  them  the  wreath  which  she  hands  them,  who 
envies  the  laborer  his  pay  —  the  laurels  never  fall  into 
any  one's  lap  without  trouble  and  merit;  they  require 
as  a  rule  the  stake  of  one's  whole  life. 

All  that  I  have  said  so  far  of  individuals  holds  true 
also  of  nations.  These  also  exist  not  merely  for  them- 
selves, but  for  the  other  nations,  for  humanity.*  And 
with  them  also  the  influence  which  they  exert  upon  others 
is  not  limited  to  their  lifetime  only,  but  extends  to  the 
most  distant  times  according  to  their  importance  and 
their  services.  The  art,  the  literature  and  the  philoso- 
phy of  the  Greeks,  the  law  of  the  Romans,  forms  to  this 
very  day  an  inexhaustible  source  of  our  education.  The 
models  of  the  beautiful,  the  noble,  and  the  mighty 
which  they  have  left  us  in  their  works  of  art,  their 
thoughts,  their  deeds,  and  their  men,  still  bear  new  fruit 
every  day  on  receptive  soil.  All  the  civilized  nations  of 
the  world  helped  to  form  our  culture  of  today;  if  we 
could  dissolve  our  present  culture  into  its  elements,  and 
follow  them  up  to  their  first  beginnings,  we  should  get 
a  list  of  nations,  and  upon  it  names  of  peoples  such  as 
no  documentary  history  records. 

*  For  a  further  development  of  this  idea,  see  my  "Geist  des  romi- 
schen  Rechts,"  Vol.  I,  p.  6  ff.  (4th  ed.). 


§^]  LIFE  THROUGH  OTHERS  65 

To  confirm  this  conviction  in  us,  the  status  of  modern 
investigation  is  sufiicient,  which  is  only  in  its  first  begin- 
nings of  a  cultural  history  of  humanity;  the  future  has 
large  gains  in  store  in  this  field.  For  our  purpose,  what 
we  already  know,  and  what  takes  place  daily  before  our 
eyes,  is  quite  sufiicient  to  warrant  the  statement  that  the 
principle,  "Every  one  exists  for  the  world,"  is  just  as 
true  of  nations  as  it  is  of  individuals.  In  it  we  possess 
the  highest  cultural  law  of  history.  The  cultural  develop- 
ment of  humanity  is  determined  according  to  the  meas- 
ure in  which  it  realizes  the  above  principle,  and  we 
need  only  infer  from  what  history  does  to  what  she 
desires,  and  prove  the  manner  in  which  she  attains  what 
she  desires,  in  order  to  find  in  the  above  principle  the 
highest  law  of  all  historical  development,  and  in  the 
realization  of  the  same  the  destiny  of  the  human  race. 
Until  this  purpose  is  realized  for  the  whole  human  race, 
history  has  not  attained  what  she  desires. 

The  discussion  hitherto  was  directed  to  proving  the 
actual  validity  of  this  law;  we  now  add  the  question 
of  the  form  of  its  realization. 

A  glance  at  the  world  around  us  teaches  us  that  this 
form  is  of  two  kinds,  free  and  forced.  Whether  I  shall 
use  my  head  or  my  hands  in  the  service  of  society  or  not 
is  a  matter  of  my  free  choice :  he  who  is  liable  to  serve 
in  the  army  is  not  asked  if  he  will  serve.  Whether  and 
what  I  shall  give  away  of  my  property  to  others  during 
life,  or  bequeath  bywill  after  death,  depends  upon  myself; 
the  payment  of  taxes  and  assessments  to  the  community 
and  the  State,  and  the  leaving  of  the  entailed  portion 
to  my  children,  does  not.  The  sphere  of  force  coincides 
with  that  of  the  law  and  the  State;  not,  to  be  sure,  in 
the  sense  that  the  State  compels  all  the  purposes  which  it 
pursues  — -  art  and  science  cannot  be  forced ;  and  yet 
the  cultivation  of  both  is  counted  among  the  purposes  of 


66  THE   CONCEPT   OF   PURPOSE       [Ch.  VI 

the  modern  State  —  but  in  the  sense  that  the  State  raises 
the  means  at  least  which  it  needs  for  these  purposes  by 
force. 

Of  voluntary  actions  which  we  undertake  for  others, 
some  take  place  from  the  standpoint  of  society  without 
any,  or  at  least  without  much,  interest;  others  again  are 
quite  indispensable  to  society.  Whether  a  person  does 
anything  for  his  friends,  or  whether  he  contributes  to 
some  collection,  is  indifferent  to  society;  but  that  the 
farmer  shall  deliver  grain,  the  baker  bread,  the  butcher 
meat,  that  society  shall  always  find  hands  and  brains 
ready  for  all  needs  and  purposes,  artisans  and  day- 
laborers,  merchants,  clergymen,  teachers,  officials  — 
this  is  of  the  greatest  interest  to  her,  and  all  the  arrange- 
ments and  habits  of  life  depend  upon  this  presupposition. 
What  assurance  has  she  that  this  presupposition  will 
always  be  realized  ?  This  is  the  question  of  the  organiza- 
tion of  society.  It  will  be  necessary,  in  order  to  answer 
it,  that  we  first  come  to  an  understanding  about  the  con- 
cept of  society,  which  we  have  already  used  before  but 
have  not  yet  explained.  When  this  has  been  done  we 
shaH  consider  the  levers  which  society  sets  in  motion  in 
order  to  carry  out  her  task. 

§  6.  Concept  of  Society.  The  concept  of  society  is,  as 
is  well  known,  modern;  it  came  to  us,  so  far  as  I  know, 
from  France.  The  fact  that  everybody  uses  the  expres- 
sion, whereas  there  is  anything  but  general  agreement 
concerning  the  conceptual  meaning  thereof,  shows  that 
there  must  be  at  its  basis  an  idea  which  our  present 
thinking  must  absolutely  have,  but  which  has  yet  to 
make  its  way  into  complete  conceptual  clearness.  As 
the  matter  has  not  yet  taken  its  final  shape,  and  ever>- 
one  has  his  own  view  of  the  expression,  I  also  may  be 
permitted  to  do  the  same  and  bring  it  into  connection 
with  my  point  of  view  concerning  action  for  others. 


§6]  LIFE  THROUGH  OTHERS  67 

A  society  ("societas")  in  the  juristic  sense  is  a  union  of 
a  number  of  persons  who  have  combined  for  the  proscr 
cution  of  a  common  purpose,  and  hence  every  one  of 
them  in  acting  for  the  purpose  of  the  society  at  the  same 
time  acts  for  himself.  A  society  in  this  juristic  sense 
presupposes  a  contract,  directed  to  its  construction  and 
regulation  —  the  social  contract.  But  actual  society, 
namely,  co-operation  for  common  purposes,  is  found 
repeatedly  in  life  without  this  form.  Our  whole  life, 
our  whole  intercourse,  is  in  this  actual  non-juristic  sense 
a  society,  i.e.,  a  working  together  for  common  purposes, 
in  which  everyone  in  acting  for  others  acts  also  for  him- 
self, and  in  acting  for  himself  acts  also  for  others.  Upon 
this  mutual  advancement  of  purposes  rests,  according 
to  my  opinion,  the  concept  of  society.  Society  must 
accordingly  be  defined  as  the  actual  organization  of 
life /or  and  by  others  and  (since  the  individual  is  what  he 
is,  only  through  others)  as  the  indispensable  form  of  life 
for  oneself;  society  is  therefore  really  the  form  of  human 
life  in  general.  Human  life  and  social  life  are  synony- 
mous. The  ancient  Greek  philosophers  recognized  this 
perfectly;  there  is  no  saying  which  expresses  the  social 
nature  of  man  more  concisely  and  more  fittingly,  than 
the  designation  of  man  as  Iwov  ttoAitikov,  i.e.,  social  being. 
The  city  (ttoAis),  i.e.,  city  life  with  its  constant  mutual 
contact  and  friction,  is  the  condition  and  the  author 
of  all  culture,  not  merely  political,  which  the  Greek 
word  at  first  suggests,  but  of  each  and  every  kind  — 
intellectual,  ethical,  economic,  artistic  —  in  short,  of 
the  entire  development  of  the  nation.  It  is  society 
that  makes  the  above  statement  true  (p.  51),  "The 
world  exists  for  me."  But  this  statement  can  be  true 
only  by  means  of  the  antithesis:  "You  exist  for  the 
world,"  the  world  has  the  same  claim  upon  you  that 
you  have  upon  the  world.      The  measure  in  which  the 


68  THE   CONCEPT   OF   PURPOSE       [Ch.  VI 

first  of  the  two  statements  is  realized  in  the  Hfe  of  the 
individual  is  synonymous  with  what  is  called  social  posi- 
tion, viz.,  wealth,  honor,  power,  influence;  the  meas- 
ure in  which  the  individual  makes  the  second  principle 
true  in  his  life  determines  the  worth  of  his  existence  for 
society,  or  in  its  widest  extent,  for  humanity.  If  it 
were  not  that  daily  experience  and  history  contradict 
such  an  opinion  in  the  most  glaring  fashion,  one  might 
believe  that  the  motive  and  the  problem  of  every  social 
order  must  be  to  bring  about  an  equilibrium  between  the 
two  principles.  It  may  be  that  the  distant  future  car- 
ries in  its  bosom  what  the  development  of  things  hitherto 
has  not  been  able  to  mature. 

§  7.  Society  and  State.  It  follows  from  this  that  the 
concept  of  society  partly  coincides  with  that  of  the  State. 
But  only  in  part ;  namely,  in  so  far  as  the  social  purpose 
requires  the  intervention  of  external  force  for  its  realiza- 
tion. But  it  needs  it  only  in  small  part.  Commerce 
and  trade,  agriculture,  manufacture  and  industry,  art 
and  science,  the  usage  of  the  home  and  the  customs  of 
life,  organize  themselves  essentially.  Only  occasionally 
does  the  State  interfere  with  its  law,  so  far  as  it  is  abso- 
lutely necessary  to  secure  against  violation  the  order 
which  these  interests  have  evolved  independently. 

§  8.  Problem  of  Social  Movement.  But  geographi- 
cally, too,  the  sphere  of  society  does  not  coincide  with 
that  of  the  State;  the  latter  ends  with  the  boundary 
posts  of  its  territory,  the  former  extends  over  the  whole 
earth.  For  the  statement,  "Everyone  exists  for  the 
other,"  is  true  for  all  humanity,  and  the  march  of  social 
movement  is  constantly  advancing  to  realize  this  geo- 
graphically in  ever  widening  extent;  to  gain  new  peoples 
constantly  for  co-operation;  to  make  all  lands,  peoples, 
forces,  goods,  useful  for  its  purposes.  To  make  the 
work  of  the  individual,  whether  it  be  of  the  hand  or  the 


§81  LIFE  THROUGH  OTHERS  69 

brain,  as  useful  as  possible  for  others,  and  thereby  in- 
directly also  for  himself,  to  effectuate  every  force  in  the 
service  of  humanity  —  this  is  the  problem  which  every 
civilized  people  must  solve,  and  with  regard  to  which 
it  must  regulate  all  its  economies.  Production  alone 
and  manufacture,  in  short,  work  alone  is  not  enough. 
Work  alone  constitutes  only  one  part  of  the  problem, 
the  second  part  consists  in  finding  the  man  who  will 
best  realize  the  purpose  of  the  labor  product  —  if  pos- 
sible to  look  for  him  over  the  entire  surface  of  the  earth. 
Most  of  the  inventions  of  modern  times  move  in  the  two 
directions  indicated  by  these  two  problems.  Some 
have  work  itself  as  their  object,  its  simplification,  per- 
fection, facilitation;  the  others  have  as  their  object  the 
utilization  of  labor  by  means  of  commerce ;  the  forward- 
ing and  transmission  of  what  the  first  has  produced  for 
society  —  (whether  it  be  the  fruit  of  his  field,  the  work 
of  his  hands,  the  product  of  his  mind  or  his  imagination) 
—  to  the  proper  purchaser,  i.e.,  to  the  one  for  whom  the 
product  has  the  greatest  value  and  who  will  therefore 
pay  the  highest  price  for  it.  If  we  picture  to  ourselves 
all  the  means  which  the  inventive  mind  of  modern  civil- 
ized peoples  has  created  for  the  purpose  just  named, 
since  the  time  of  the  Middle  Ages,  we  have  a  right  to 
maintain  that  nowadays  no  power  which  has  the  capacity 
to  be  useful  to  humanity  is  lost  for  its  service;  everyone 
finds  its  proper  application  in  our  times.  The  press 
carries  the  thought  which  deserves  it  from  one  point 
of  the  earth  to  the  other  without  delay;  every  great 
truth,  every  important  discovery,  every  useful  invention, 
becomes  in  a  very  short  time  the  common  property  of 
the  whole  civilized  world,  and  commerce  transmits  to 
all  the  inhabitants  of  the  earth  what  she  produces  at 
any  point,  in  the  Tropics  as  well  as  in  the  Frigid  Zone. 
This  makes  it  possible  for  the  commonest  laborer  to 


70  THE   CONCEPT   OF   PURPOSE       [Ch.  VI 

do  good  thousands  of  miles  away.  Quinine,  which  the 
Peruvian  laborer  gathers,  causes  the  recovery  of  hun- 
dreds in  our  midst  —  the  merit  of  the  preservation  of  a 
life  upon  which  depended  the  future  of  a  whole  nation, 
or  a  new  era  of  art  and  science,  is  due  in  the  last  instance 
perhaps  to  the  whale-hunter  who  procured  blubber  for 
the  consumptive.  The  laborer  in  Nuremberg  and  Solin- 
gen  works  for  the  Persian;  the  Chinese  and  the  Japanese 
work  for  us;  thousands  of  years  hence  the  negro  in  the 
interior  of  Africa  will  need  us  as  much  as  we  need  him,  for 
the  man  of  science,  who  opens  the  interior  of  Africa,  is 
followed  very  soon  after  by  the  merchant  and  the  mis- 
sionary, who  establish  enduring  connections. 

This  therefore  is  society,  namely,  the  realization  of 
the  truth  of  the  principle,  "Everyone  exists  for  the  world, 
and  the  world  exists  for  every  one."  ^  Having  determined 
this  concept  we  now  return  to  the  question  which  we 
asked  above,  viz.,  What  guaranty  does  society  possess 
that  every  one  will  do  his  share  in  realizing  the  principle 
upon  which  her  whole  existence  depends,  namely  that 
the  individual  exists  for  society?  The  following  dis- 
cussion will  give  the  answer  to  this  question. 

3  For  the  objections  to  this  concept  from  the  juristic  standpoint, 
see  Vol.  II,  no.  18.  That  the  concept  of  society  cannot  be  avoided 
even  in  legal  theory  will  be  shown  in  Chapter  VIII,  where  I  reduce 
the  interests  protected  by  the  law  to  the  subject  of  their  purpose 
(individual.  State,  society).  But  the  most  valuable  application  of 
this  concept  will  be  found  in  the  second  volume  in  connection  with 
the  analysis  of  the  concept  of  the  ethical,  and  in  the  third  volume 
in  connection  with  the  realization  of  the  ethical  (social  system  of 
coercion).     (The  third  volume  was  never  written.  —  Translator.] 


SOCIAL  MECHANICS  — REWARD  71 


CHAPTER  VII 

SOCIAL    MECHANICS,    OR    THE    LEVERS    OF 
SOCIAL   MOVEMENT 

1.  THEEGOISTICLEVERS  — REWARD. —SOCIAL  MECHAN- 
ICS. —  COMMERCE.  —  §  1.  INSUFFICIENCY  OF  BENEVO- 
LENCE FOR  PURPOSES  OF  COMMERCE  (LIBERAL  CON- 
TRACTS AND  BUSINESS  CONTRACTS;  ROMAN  SYSTEM 
OF  COMMERCE  IN  EARLIER  AND  LATER  TIMES).— 
ALL  COMMERCE  FOUNDED  UPON  EGOISM.  —  §  2.  THE 
PRINCIPLE  OF  COMPENSATION. —  THE  TWO  PRINCIPAL 
FORMS  OF  COMMERCE  —  THE  FIRST:  EXCHANGE  (DIFFER- 
ENCE OF  PURPOSE  ON  BOTH  SIDES)  REAL  PERFORMANCE 
AND  CONSIDERATION.  —  §  3.  PROGRESS  FROM  REAL  CON- 
SIDERATION TO  REWARD.  —  §  4.  PROMOTION  OF  REWARD 
TO  EQUIVALENT.  —  §  5.  ORGANIZATION  OF  WORK  IN  THE 
FORM  OF  A  VOCATION.  —  §  6.  CREDIT.  —  §  7.  IDEAL  RE- 
WARD AND  ITS  COMBINATION  WITH  ECONOMIC  REWARD 
(SALARY,  HONORARIUM;  MAINTENANCE  IN  CONTRAST 
WITH  REWARD).  — THE  SECOND  PRINCIPAL  FORM  OF 
COMMERCE:  PARTNERSHIP  (IDENTITY  OF  PURPOSE  ON 
BOTH  SIDES).—  §8.  ASSOCIATION;  PUBLIC  SPIRIT;  DE- 
FECTS OF  THE  SECOND  PRINCIPAL  FORM.  —  THE  BRIGHT 
SIDES  OF  COMMERCE;  ETHICAL  SIGNIFICANCE  OF  COM- 
MERCE. 

Social  Mechanics.  This  is  the  picture  of  society  as 
life  presents  it  daily  to  our  eyes.  Thousands  of  rollers, 
wheels,  knives,  as  in  a  mighty  machine,  move  restlessly, 
some  in  one  direction,  some  in  another,  apparently 
quite  independent  of  one  another  as  if  they  existed  only 
for   themselves,    nay    in    apparent    conflict,  as    if    they 


72  THE  CONCEPT  OF   PURPOSE     [Ch.  Vll 

wanted  mutually  to  annihilate  each  other  —  and  yet 
all  work  ultimately  together  harmoniously  for  one  pur- 
pose, and  one  single  plan  rules  the  whole.  What  com- 
pels the  elementary  forces  of  society  to  order  and  co- 
operation; who  indicates  to  these  their  paths  and  their 
motions?  The  machine  must  obey  the  master;  the 
laws  of  mechanics  enable  him  to  compel  it.  But  the 
force  which  moves  the  wheelwork  of  human  society  is 
the  human  will;  that  force  which,  in  contrast  to  the 
forces  of  nature,  boasts  of  its  freedom ;  but  the  will  in 
that  function  is  the  will  of  thousands  and  millions  of 
individuals,  the  struggle  of  interests,  of  the  opposition 
of  efforts,  egoism,  self-will,  insubordination,  inertia, 
weakness,  wickedness,  crime.  There  is  no  greater 
miracle  in  the  world  than  the  disciplining  and  training 
of  the  human  will,  whose  actual  realization  in  its  widest 
scope  we  embrace  in  the  word  society. 

The  sum  of  impulses  and  powers  which  accomplish 
this  work  I  call  social  mechanics.  If  these  were  want- 
ing, who  would  assure  society  that  the  moving  forces 
upon  which  she  counts  might  not  one  day  refuse  their 
service,  or  take  a  direction  hostile  to  her  purposes;  that 
the  will  might  not  one  day  at  this  or  that  point  rise  in 
revolt  against  the  role  assigned  to  it  and  bring  the  whole 
wheelwork  to  a  standstill?  Temporarily  such  standing 
still  actually  takes  place  at  individual  points;  yea,  even 
shocks  which  seem  to  threaten  the  entire  existence  of 
society,  just  as  in  the  human  body.  But  the  vital  force 
of  society  is  so  strong  and  indestructible  that  she  always 
quickly  overcomes  these  disturbances;  in  place  of 
anarchy,  order  as  a  rule  at  once  steps  in  again  —  every 
social  disturbance  is  only  a  search  for  a  new  and  better 
order  —  anarchy  is  only  a  means,  never  an  end,  some- 
thing temporary,  never  anything  permanent ;  the  struggle 
of  anarchy  with  society  always  ends  with  the  victory  of 
the  latter. 


SOCIAL  MECHANICS  — REWARD  73 

But  this  means  nothing  else  than  that  society  possesses 
a  compelHng  power  over  the  human  will ;  that  there  is  a 
social  mechanics  to  compel  the  human  will  just  as  there 
is  a  physical  mechanics  to  force  the  machine.  This  social 
mechanics  is  identical  with  the  principle  of  leverage, 
by  means  of  which  society  sets  the  will  in  motion  for 
her  purposes,  or  in  short,  the  principle  of  the  levers  of 
social  motion. 

There  are  four  such  levers.  Two  of  them  have  ego- 
ism as  their  motive  and  presupposition ;  I  call  them  the 
lower  or  egoistic  social  levers;  they  are  reward  and  coer- 
cion. Without  them  social  life  cannot  be  thought,  no 
commerce  without  reward,  and  no  law  or  State  without 
coercion ;  they  represent  therefore  the  elementary  assump- 
tions of  society;  the  necessary  impulses  which  can 
nowhere  be  wanting  and  are  not  wanting,  though  their 
condition  be  ever  so  rudimentary  or  degenerate.  Opposed 
to  these  are  two  other  impulses  which  have  not  egoism 
as  their  motive  and  presupposition,  but  on  the  contrary 
the  denial  thereof;  and  as  they  come  into  play  not  in 
the  lower  region  of  purely  individual  purposes,  but  in  the 
higher  region  of  universal  purposes,  I  call  them  the  higher; 
or,  since,  as  I  shall  show  later  (Chapter  IX),  society  is 
the  source  of  morality,  the  moral  or  ethical  levers  of 
social  motion.  They  are  the  Feeling  of  Duty  and  of 
Love;  the  former  the  prose,  the  latter  the  poetry  of  the 
moral  spirit. 

Of  the  two  egoistical  levers,  coercion  holds  psycho- 
logically the  lowest  position.  Reward  stands  psycho- 
logically a  degree  higher,  for  reward  appeals  to  the 
freedom  of  the  subject;  it  expects  its  success  exclusively 
from  the  free  resolve  of  the  latter.  In  an  indolent  per- 
son reward  fails  of  its  purpose,  whereas  coercion  proves 
its  power  over  him  also,  for  it  either  excludes  freedom 
entirely,   where  it  operates  mechanically,  or  limits  it, 


74  THE   CONCEPT  OF   PURPOSE     [Cii.  vii 

where  it  operates  psychologically  (p.  17).  Coercion 
addresses  itself  to  man  at  his  lowest;  it  denotes  the 
lowest  point  of  social  mechanics;  which  should  therefore 
in  reality  begin  with  coercion.  But  the  point  of  view 
from  which  we  have  to  consider  those  two  levers  is  not 
the  manner  of  their  psychological  influence  upon  the 
individual,  but  their  practical  significance  for  society; 
and  if  we  apply  the  point  of  view  of  social  formation  to 
the  two  motives  as  a  standard  of  measurement,  there 
can  be  no  doubt  that  the  social  organization  of  reward  — 
commerce,  is  to  be  designated  as  lower  in  comparison 
with  that  of  coercion  —  the  law  and  the  State.  Hence 
an  exposition  which  has  made  it  its  task  to  rise  from  the 
lower  to  the  higher  in  its  consideration  of  society,  must 
begin  with  rew^ard,  as  we  are  going  to  do. 

Commerce.  Commerce  is  the  organization  of  the 
assured  satisfaction  of  human  wants,  which  is  based 
upon  the  lever  of  reward.  This  definition  of  the  concept 
embraces  three  elements;  the  need  as  the  motive,  the 
reward  as  the  means,  and  the  organization  in  mutual 
relation  of  these  elements  as  the  form  of  commerce.  This 
organization  is,  as  perhaps  no  other  element  of  the 
human  world  besides,  the  natural  product  of  the  free 
development  of  purpose;  it  is  the  dialectics  (not  the 
logical  dialectics  of  the  concept,  in  which  I  do  not 
believe),  but  the  practically  compelling  dialectics  of 
the  purpose,  which  has  produced  out  of  the  two  factors 
of  need  and  reward  in  gradual  progress  the  immeas- 
urable wealth  of  formation  which  we  know  by  the  one 
word,  commerce.  And  there  is  no  more  grateful  task 
for  the  thinker  interested  in  the  practical  than  to  fol- 
low the  ways  of  purpose  in  this  matter,  and  to  observe 
how  from  the  simplest  germ  there  have  gradually  arisen 
by  a  compelling  necessity  ever  higher  forms  and  struc- 
tures.    I  will  make  the  attempt  to  bring  to  view  this 


SOCIAL  MECHANICS— REWARD  75 

dialectics  of  purpose,  by  seeking  out  for  all  the  phe- 
nomena of  commerce  those  points  in  which  they  proceed 
from  it,  as  branches  and  twigs  from  the  trunk,  from  the 
foot  to  the  crown;  at  the  same  time  pointing  out  the 
determining  reasons  which  produced  the  particular 
impulses.  The  economic  side  of  the  question  is  entirely 
foreign  to  my  investigation,  which  is  purely  social  in  its 
nature,  and  I  am  only  interested  in  the  arrangements 
upon  which  the  security  of  the  satisfaction  of  human 
want  is  based  for  society,  but  not  in  the  laws  according 
to  which  the  methods  of  commerce  are  regulated.  The 
contents  of  the  problem  before  us  will  naturally  assume 
a  juristic  form,  which  is  inseparable  therefrom. 

The  decisive  position  which  I  shall  constantly  keep  in 
mind  in  the  following  consideration  is  that  of  the  security 
of  the  satisfaction  of  human  wants;  it  shall  be  the  stand- 
ard by  which  I  intend  to  measure  all  the  phenomena 
of  commerce. 

Want  is  the  band  with  which  nature  draws  man  into 
society,  the  means  by  which  she  realizes  the  two  prin- 
ciples of  all  morality  and  culture,  "Everybody  exists 
for  the  world,"  and  "the  world  exists  for  everybody" 
(p.  51).  Dependent  as  he  is  upon  his  fellowmen  through 
his  need,  and  the  more  so  as  his  need  grows,  man  would 
be  the  most  unhappy  being  in  the  world  if  the  satis- 
faction of  his  need  depended  upon  accident,  and  he  could 
not  count  with  all  security  upon  the  co-operation  and 
assistance  of  his  fellowmen.  In  that  case  the  animal 
would  be  an  object  of  envy  to  him,  for  the  animal  is  so 
made  by  nature  that  when  it  comes  into  possession  of  the 
powers  destined  for  it  by  nature  it  needs  no  such  sup- 
port. The  realization  of  the  mutual  relations  of  man 
for  her  purpose;  the  elimination  of  accident;  the  estab- 
lishment of  the  security  of  the  satisfaction  of  human 
need  as  a  basal  form  of  social  existence;    the  regulated. 


76  THE  CONCEPT  OF   PURPOSE     [Ch.  VII 

assured  and  substantial  system  of  actions  and  methods 
which  minister  to  this  satisfaction,  keeping  equal  step 
with  the  need  —  that  is  commerce. 

The  simplest  form  of  satisfaction  of  a  need,  in  man  as  in 
the  animal,  lies  in  his  own  power.  But  whereas  in  the 
animal,  need  and  power  coincide,  this  is  not  the  case  in 
man.  It  is  this  very  disproportion  between  the  tw^o,  this 
insufficiency  of  his  own  power,  w^hich  is  the  cause  by 
means  of  w'hich  nature  forces  him  to  be  a  man;  namely, 
to  look  for  man,  and  in  association  wuth  others  to  attain 
those  purposes  to  which  he  is  alone  unequal.  In  his 
necessity  she  refers  him  to  the  outside  world  and  his 
fellows.  Let  us  now  investigate  how  he  makes  use  of 
others  for  the  satisfaction  of  his  wants. 

§  1.  Insufficiency  of  Benevolence  for  Purposes  of 
Commerce.  Benevolence  and  beneficence  mean  wishing 
and  achieving  the  good  of  another  for  this  one's  ow^n  sake, 
without  benefit  to  oneself.  These,  therefore,  presuppose 
the  sentiment  of  disinterestedness  and  unselfishness. 
That  a  system  of  commerce  cannot  be  built  upon  such 
a  motive  is  so  evident  that  we  need  waste  no  words  in 
discussing  it.  Nevertheless,  this  does  not  exclude  the 
possibility  that  benevolence  may  after  all  exercise  a 
certain  function,  even  though  a  limited  one,  in  the  pur- 
poses of  commerce.  Let  us  see  whether  this  is  the  case 
and  to  what  degree. 

Liberal  Contracts  and  Business  Contracts.  If  the  ques- 
tion were  how  far  the  juristic  scope  of  benevolence 
extends,  W'e  should  have  to  answer,  quite  as  far  as  that 
of  egoism,  for  the  scheme  of  gratuitous  contracts  {liberal, 
by  courtesy,  friendly)  contains  a  completely  fitting  coun- 
terpart to  that  of  onerous  contracts  {egoistic,  business 
contracts).     One  may  add' 


(3)  Performance  of      j  "Operae  Illiberales" 
Service  (^  Contract  for  Services 


§1]         SOCIAL  MECHANICS  — REWARD  77 

For  Pay  Gratuitously 

(1)  An  Object  Purchase,  Exchange  Donation 

(2)  The  Use  /  n     r  t  fLoan  for  Use  ("com- 

/  s     r       /-M  •         1  Usuiructuary  Lease    j  ,  ,,,     ,,t^ 

(a)  ot  an  Object -^  ^    ,•  t  S  modatum    ),      rreca- 

l  Ordinary  Lease  .       ,, 

l^rium 

{b)  of  Capital  Loan  on  Interest        Loan  without  Interest. 

Gratuitous  Agency 
("mandatum  "), 
Deposit,  Voluntary 
Assumption  of  An- 
other Person's  Busi- 
ness ("negotiorum 
gestio") 

So  every  business  contract  has  a  gratuitous  contract 
corresponding  to  it,  and  thereby  we  might  suppose  the 
significance  of  benevolence  in  commerce  is  sufficiently 
proven.  But  from  the  fact  that  benevolence  also  makes 
its  appearance  in  the  domain  of  law,  and  has  a  share  in  its 
forms,  it  does  not  yet  follow  by  any  means  that  it  has 
any  practical  significance  worth  mentioning  in  the  pur- 
pose of  commerce. 

The  contracts  of  the  first  column  are  based  on  no 
other  presupposition  than  money  —  whoever  pays  the 
most  money  gets  the  object,  whether  he  is  personally 
known  or  not.  Those  of  the  second  column,  on  the 
contrary,  presuppose  certain  personal  relations  or  indi- 
vidual qualities,  which  give  rise  to  a  given  act  of  benevo- 
lence ^  —  we  do  not  give  presents  to,  nor  do  we  lend  to 
or  serve  every  Tom,  Dick  and  Harry,  but  we  consider 
the  person;   and  this  influence  of  the  personal  element 

'  Especially  the  relation  of  friendship.  This  element  is  frequently 
emphasized  by  the  Roman  jurists  in  those  contracts:  "affectio," 
Dig.  3.  5.  3  §  9,  39.  5.  5;  "officium  amicitiae,"  42.  5.  23;  "officium 
atque  amicitia"  17.  1.  1  §  4.  The  service  which  is  rendered  is  a 
favor,  a  benefit:  "beneficium,"  13.6.  17  §3.;  "liberalitas,"  43.26. 
1  §  1,  2  §  2;  "liberalitas  et  munificentia,"  39.  5.  1.  pr. 


78  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

makes  benevolence  useless  for  the  purpose  of  com- 
merce, which  requires  complete  indifference  of  person. 
(See  below.) 

The  initiative  which,  in  all  acts  that  one  requires  from 
another  for  the  satisfaction  of  one's  needs,  proceeds  from 
the  one  who  feels  the  need  is  called  in  business  contracts, 
offer;  in  gratuitous  contracts,  request;  in  charitable 
contracts,  begging;  and  these  three  expressions  indicate 
sufficiently  the  difference  of  the  personal  relation  exist- 
ing in  the  three  cases.  Offer  requires  no  special  indi- 
vidual relations  or  qualities  beyond  being  aware,  in 
general,  of  the  inclination  of  the  other  party  to  make 
the  contract;  but  the  two  other  forms  of  initiative  do. 
A  request  for  which  the  justification  is  sought  by  the 
person  who  makes  it  in  his  poverty  and  need  of  help  is 
called  begging,  and  the  gift  which  is  granted  out  of  such 
regard,  from  sympathy  and  pity,  is  called  alms  (juris- 
tically  not  distinguished  from  a  gift  "donatio";  the 
difference  being  simply  social  in  its  nature) ;  and  in  the 
contemptuous  judgment  which  language  passes  in  this 
term  lies  expressed  the  uselessness  of  this  sort  of  help 
for  the  purposes  of  commerce.  Assistance  which  must 
be  bought  at  the  price  of  personal  humiliation  is  the 
exact  opposite  of  that  which,  as  we  shall  see  later,  con- 
stitutes the  highest  and  most  beautiful  aim  of  com- 
merce, viz.,  the  independence  of  the  person.  This  humili- 
ation, it  is  true,  is  absent  in  request,  but  request  has  a 
very  narrow  scope  in  reference  to  the  thing  as  well  as 
the  person.  One  cannot  request  everything  —  there  is  a 
point  where  requesting  passes  over  into  begging;  —  and 
one  cannot  request  everybody,  unless  the  content  of  the 
request  is  limited  to  such  favors  as  every  one  can  grant 
without  the  least  exertion;  such  as  courtesies  of  the 
street,  a  request  for  information,  etc.  These  alone  are 
free  from  all  personal  discrimination,  and  in  so  far  stand 


§1]         SOCIAL  MECHANICS  — REWARD  79 

on  the  same  line  as  acts  of  business  intercourse  —  every 
one  has  the  right  to  require  them  and  feel  assured  that 
they  will  be  granted.  But  on  the  other  hand  the  meas- 
ure of  these  favors  in  respect  to  content  is  so  very  scanty 
that  they  vanish  into  nothingness  in  comparison  with 
the  wealth  of  purposes  which  commerce  has  to  satisfy. 
Beyond  this  minimum  of  application,  request  as  well  as 
the  prospect  of  its  fulfilment  is  connected  with  individual 
personal  relations  (friendship,  neighborhood,  acquaint- 
ance, relation  of  dependence,  etc.),  and  even  when  these 
are  present,  its  scope  is  still  so  narrowly  limited  that  the 
impossibility  of  basing  any  purpose  of  commerce  upon 
self-denial  (favor)  instead  of  upon  egoism  (reward)  is 
quite  evident. 

Roman  System  of  Commerce  in  Earlier  and  Later  Times. 
I  feel  the  necessity  of  making  an  objection  to  my  own 
view  here.  The  theory  advanced  is  taken  from  the 
consideration  of  our  present  life,  and  is  true  of  the  stage 
of  development  of  commerce  in  the  present.  In  these 
days  money  has  driven  favor  entirely  from  the  field 
as  a  mode  of  commerce.  But  it  was  not  always  so. 
There  were  times  when  one  got  services  for  nothing 
which  now  one  can  get  only  for  money,  and  that  too  not 
only  in  cases  where  there  were  special  personal  rela- 
tions, but  in  general  and  with  no  limitation.  At  this 
time,  then,  favor  actually  constituted  3i  factor  in  the  life 
of  commerce,  and  exercised  a  function  therein.  Similar 
conditions  are  still  to  be  found  among  uncivilized  peoples 
of  today  in  reference  to  hospitality ;  and  in  regions  thinly 
populated  they  are  found  among  civilized  peoples  also. 

The  objection  is  perfectly  correct,  and  I  do  not  regard 
it  as  a  waste  of  time  to  dwell  on  it  a  little  longer,  for  it  is 
well  calculated  to  give  a  better  insight  into  the  life  of 
commerce.  Yet  it  will  be  advisable  for  our  purpose  to 
make  clear  to  ourselves  in  a  concrete  historical  form 


80  THE   CONCEPT   OF   PURPOSE     [Ch.  MI 

what  was  the  condition  of  society  to  which  this  refers  us. 
I  know  of  no  better  choice  —  quite  apart  from  the  special 
relation  which  the  object  has  for  the  jurist  —  than  to 
present  clearly  the  contrast  between  paid  and  gratuitous 
services  as  it  practically  existed  in  ancient  Rome  for 
centuries;  and  then  to  join  to  this  an  account  of  the 
transformation  which  the  thing  underwent  in  later 
times.  The  historical  excursus  which  I  shall  thus  insert 
will  not  be  fruitless  for  the  purposes  of  our  investigation. 
The  difference  between  paid  and  gratuitous  work  in 
ancient  Rome  coincides  with  that  between  manual  and 
intellectual ;  the  former  service  alone  extended  the  hand 
for  pay,  the  latter  did  not.  The  conception  which  lay 
at  the  basis  was  not  peculiarly  Roman,  it  is  found  among 
all  peoples  and  individuals  upon  a  low  level  of  culture, 
for  it  is  nothing  else  than  the  practical  application  to 
work  of  the  c  udely  material  mode  of  viewing  things 
peculiar  to  them.  Bodily  work  is  a  fact  subject  to  the 
obser\'ation  of  the  senses  by  all  persons.  The  subject 
who  is  engaged  in  it  feels  it,  the  third  person  sees  it,  and 
not  merely  the  work  alone  as  an  act  but  also  its  product, 
its  permanent  result.  This  alone  gives  it  a  claim  to 
reward;  in  the  first  place  because  this  is  the  only  work 
that  costs  sweat,  and  in  the  second  place  because,  accord- 
ing to  crude  ideas,  this  is  the  only  work  that  produces 
things. 2     Intellectual  labor,  on  the  other  hand,  is  not 

'^This  idea  is  expressed   in  language,  vhere  the  expression  "Ge- 
schaft"  [business]  (from  "schaffen"  —  to  create)  is  restricted  to  work 
in  the  above  sense.     Work  ("Arbeit")  is  connected  with  production 
("Schaffen")    and    property    ("Vermogen").     In    Latin:     "opera, 
pains,  effort;    "opus,"  the  product  of  work,  "opes"  and  "c-opia, 
wealth,   property.     In  German:    "Arbeit"   ("arb,"  "arbi,"  "arpi, 
Slavic,  with  letters  interchanged,  "rab-ota,"  Polish  "robota")  work 
and  "Erbe"  ("arbja,"  "arbi,"  "arpi,"  "erbi,"  "das  Erbe"  —  inheri- 
tance—  property,    wealth),    "Dienen"  (serving)    and    "Verdienen' 
(earning). 


§1]'        SOCIAL  MECHANICS— REWARD  81 

regarded  as  work,  for  it  seems  not  to  fatigue  the  person, 
and  apparently  costs  him  no  trouble.^  What  right  can 
a  man  have  to  ask  of  us  remuneration,  whose  whole  work 
for  us  consists  in  thinking;  whose  service  to  us  is  merely 
speaking?  Words  cost  no  money  —  he  who  gives  them 
is  paid  with  the  same  coin  in  return;  he  is  thanked  with 
words,  and  with  "divine  reward,"  but  he  gets  nothing. 
This  conception  which  is  still  prevalent  today  among 
common  people  was  originally  found  everywhere.  In 
ancient  Rome  it  was  regarded  so  seriously  that  it  was  con- 
sidered ignoble  to  receive  pay  for  intellectual  work. 
Manual  labor  alone  was  paid  for  and  therefore  also 
despised.  For  reward  ("merces")  puts  it  on  a  level 
with  merchandise  ("merx");  it  is  offered  for  sale 
("locatur"  from  "locus")  ^  and  bought  like  the  other; 
the  paymaster  takes  the  man  along  ("conducere"  to 
lead  along  with)  just  as  he  takes  the  thing  which  he  buys 
("emere"  —  to  take).  The  expressions  for  hire  are  ex- 
actly the  same  for  free  men,  slaves,  and  things.  The 
servant  or  laborer  is  considered  as  a  temporary  contract 
slave;    his  service  involves  social  degradation  ("minis- 


^The  idea  is  expressed  in  Latin:  "otium,"  leisure,  "negotium" 
(Festus:  quod  non  sit  otium),  business.  He  who  has  an  occupa- 
tion, a  business,  has  no  leisure,  and  vice  versa. 

*  "Locare,"  to  display,  to  exhibit,  is  synonymous  with  public  offer 
for  sale.  In  Plautus  the  cooks  stand  exhibited  in  the  market 
place  and  are  taken  home  by  the  one  who  arranges  for  a  meal. 
Conversely  in  the  case  of  "opus,"  "locatio,"  i.  e.  public  bidding,  takes 
place  on  the  part  of  the  one  who  is  looking  for  one  to  take  it  upon 
himself  ("conducit").  The  German  language  borrows  the  expres- 
sion "Gewerbe"  (trade,  industrial  pursuit)  from  the  same  idea  of 
exhibiting,  seeking  for  work.  "Gewerbe"  means  "werben,"  i.  e., 
"suing  for"  work  and  pay.  It  is  not  applied  to  intellectual  pro- 
fessions, any  more  than  the  terminology  of  hire  ("merces,"  "locatio," 
"conductio")  was  extended  to  them  in  Rome. 


82  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

terium"),^  for  it  binds  him  to  do  things  to  which  a  free 
man  should  not  give  himself,  and  which  he  should  leave 
to  the  slave  ("operae  illiberales").®  The  service  of  the 
free  man  is  no  "ministerium,"  but  a  "munus  ';  it  con- 
sists not  in  corporeal  but  in  intellectual  activity,  and 
it  is  rendered  not  for  the  sake  of  reward,  but  out  of  good- 
will ("gratia'  ),  without  pay  ("gratis").  It  is  a  favor 
("munificentia,"  "beneficium,"  "officium"),  which  is 
worthy  of  a  free  man  ("1  ber,"  "liberalitas"),  and  which 
produces  in  the  other  party  the  obligation  to  thank  only, 
("gratiae,"  "gratum  facere"  - — ^  "gratificatio").  The 
"munus"  may  be  returned  on  the  other  side  ("remun- 
erari"),  under  certain  circumstances  even  in  money, 
but  this  compensation  is  no  "merces,"  but  "honor," 
"honorarium,"  an  honorary  present  which  does  not 
prejudice  the  honor  of  either  partyJ  If  special  skill 
or  knowledge  is  necessary  for  the  service,  then  it  is  an 
excellence,  a  virtue  (dperi;— "ars"),  which  is  an  orna- 
ment for  the  free  man  ("ars  liberalis");  the  trouble  he 
takes  to  learn  it  is  not  "labor,"  "opera,"  but  "studium," 
an  object  of  striving  ("studere")  for  its  own  sake. 

Such  is  the  ancient  Roman  conception.     Agriculture, 

^  From  "minus,"  "minuere,"  "ministerium,"  i.  e.,  lowering,  in 
contrast  with  "magis"  "magister,"  "magistratus,"  i.  e.,  elevation 
above  the  social  level  of  the  ordinary  citizen. 

®  Cicero,  "De  Officiis"  I,  42.  "Merces  auctoramentum  servitutis." 
The  earnings,  he  says  here,  of  all  hired  labor  are  dirty:  "quorum 
operae,  non  quorum  artes  emutitur,"  Similarly  the  gain  of  all  manual 
laborers  ("in  sordida  arte  versantur"),  of  peddlers  and  even  of  shop 
keepers.     Hence  "sordidum"  —  the  pay  of  the  broker,  Dig.  50.  14.  3. 

'Dig.  11.  6.  1.  pr  "  .  .  .  ad  remunerandum  dariet  inde  honora- 
rium appe  lari."  Its  value  lies  not  in  the  money  but  in  the  inten- 
tion—  a  conception  which  appears  again  in  the  "honorare"  of 
bequests  ("legatum"):  The  respectable  person  is  more  concerned 
about  the  recognition,  the  honor  ("honor  legati,"  Dig.  27.  1.  36.  pr.) 
than  about  the  money,  no  matter  how  eager  he  may  be  to  get  it. 


§1]         SOCIAL  MECHANICS  — REWARD  83 

placing  money,  wholesale  business,  are  respectable; 
every  other  branch  of  industry  has  a  taint  attaching 
to  it.  Intellectual  power,  talent,  knowledge  is  a  good 
which  everyone  who  values  honor  must  place  gratuitously 
at  the  disposition  of  his  fellow-citizens  and  the  State. 
The  State  official  receives  no  salary  (only  subordinate 
service  is  paid,  so  far  as  it  is  not  provided  for  by  public 
slaves) ;  magistracies  are  purely  posts  of  honor 
("honores").  Neither  does  the  calling  of  jurisconsult 
("jurisconsultus"),  so  entirely  indispensable  to  Roman 
life,  bring  any  income. 

For  ancient  Rome  this  conception  held  an  eminently 
social  significance.  I  do  not  mean  this  in  the  sense  that 
it  determined  the  social  position  of  the  individual  and 
the  distinction  of  classes,  but  in  reference  to  the  func- 
tion of  the  gratuitous  services  in  commerce.  In  Rome 
the  gratuitous  services  covered  essential  needs  of  society 
and  the  State ;  the  condition  of  both  rested  for  hundreds 
of  years  on  the  presupposition  that  such  services  could 
be  safely  depended  upon  at  all  times  to  the  needed  ex- 
tent without  pay;  just  as  drinking-water  with  us  — 
indispensable,  and  yet  at  the  same  time  free. 

Now  what  was  it  that  made  the  Roman  give  his  ser- 
vices free  of  charge?  Was  it  benevolence,  unselfishness? 
We  do  not  know  the  Romans  very  well  if  we  believe 
this.  No!  The  Roman  did  not  relinquish  all  reward 
for  his  services,  only  it  did  not  consist  in  ringing  coins, 
but  in  a  good  which  had  no  less  a  power  of  attraction 
for  the  man  of  the  higher  classes  than  money  for  that  of  the 
lower,  viz.,  honor,  prestige,  popularity,  influence,  power. 
This  was  the  price  which  the  prominent  public  character 
regularly  had  in  mind  when  he  did  anything  for  the 
people;  and  he  measured  the  value  of  magistracies 
accordingly.  The  purely  ecclesiastical  posts,  those  of 
the   "rex  sacrificulus,"   of  the   "flamines,"   etc.,   which 


84  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

bestowed  no  power,  enticed  him  so  little  that  whereas 
in  the  "honores"  the  men  sought  the  office,  here  the 
office  sought  the  men. 

It  was  not  therefore  self-denial,  but  the  familiar  prin- 
ciple of  egoism,  upon  which  in  Rome  the  assurance  of 
those  services  was  based  which  were  indispensable  to 
the  State  and  society ;  except  that  the  reward  which  was 
expected  was  not  economical  in  its  nature,  but  ideal. 
At  the  same  time  this  phenomenon  so  strange  to  our 
days  of  replacing  the  prosaic  motive  of  money  by  more 
ideal  motives  has  a  peculiar  fascination  for  us. 

But  the  thing,  in  addition  to  its  ideal  side,  had  also  a 
\ery  serious  practical  reverse  side. 

A  calling  which  brings  only  honor  but  no  bread  is 
closed  to  the  man  of  no  means.  So  it  was  in  Rome. 
Service  of  the  State  and  jurisprudence  actually  consti- 
tuted the  monopoly  of  the  well-to-do.  One  of  the  most 
prominent  jurists  in  the  time  of  the  early  emperors,^ 
who  had  devoted  himself  to  this  science  without  means, 
had  to  buy  this  venture  in  the  choice  of  his  profession 
by  being  obliged  to  receive  support  from  his  auditors. 
Where  science  has  not  yet  won  its  right,  i.  e.,  its  claim  to 
compensation,  the  gracious  gift  takes  the  place  of  com- 
pensation. 

This  defect  brought  about  the  fall  of  the  entire  system, 
and  the  innovation,  in  the  transition  to  the  pay  system, 
meant  great  progress  socially.  The  revolution  took 
place  first  in  science,  and  this  was  brought  about  by 
foreign  influence.  The  Greek  teachers  in'all  branches  of 
art  and  science,  the  "rhetores,"  "grammatici,"  "philoso- 
phi,"  "mathematici,"  "geometrae,"  "architecti,"  "paeda- 
gogi,"  and  whatever  other  names  those  teachers  may  have 
had  who  made  pilgrimages  to  the  world  city  in  great 
numbers  to  try  their  fortune  there,  and  who  betray  their 

^  Masurius  Sabinus,  Dig.  1.  2.  2  §48. 


§1]         SOCIAL  MECHANICS  — REWARD  85 

Greek  origin  in  their  names  —  all  brought  considerable 
knowledge  and  skilled  hands.  But  their  pockets  were 
empty  and  their  stomachs  were  hungry,  and  necessity 
forced  them  to  defy  Roman  prejudice  and  accept  money 
for  instruction.  So  these  accustomed  the  Roman  to  a 
spectacle  hitherto  new  to  him,  of  seeing  science  earn  a 
living;  and  theirs  is  the  merit  —  for  it  was  a  merit  — 
to  have  conquered  the  national  prejudice,  and  to  have 
won  for  art  and  science  their  legal  status  on  Roman 
ground.  For  so  we  must  regard  the  circumstance  that 
the  law  did  not  apply  to  science  the  humiliating  form 
of  "actio  locati"  and  "merces,"  but  created  for  it  a  new 
form,  the  "extraordinaria  cognitio"  of  the  praetor  over 
the  honorarium  —  the  procedural  expression  of  the  fact 
that  art  and  science  were  not  placed  on  the  same  line  with 
manual  labor.^  The  private  honorarium  was  followed 
later  by  compensation  to  teachers  from  the  funds  of 
State  and  community. 

Jurisprudence  too  was  not  left  without  a  trace  of  the 
revolution.  Greek  influence  brought  about  a  division  in 
the  legal  profession  which  had  been  quite  unknown  in 
ancient  times;  between  the  purely  practical  or  business 
profession  and  the  purely  scientific  or  theoretical.  The 
former  is  represented  by  the  "pragmaticus,"  the  jurist 
with  a  Greek  title,  and  patterned  after  a  Greek  model, 
a  kind  of  jurist  that  was  quite  foreign  to  ancient  Rome. 
He  is  a  business  man  who  is  ready  to  serve  every  busi- 
ness interest  for  money,  a  juristic  commissionaire,  or  agent, 
good  for  everything.  The  second  branch  of  the  profes- 
sion is  represented  by  the  jurist  with  the  Roman  title 
("jurisconsultus"),  and  in  the  ancient  Roman  style,  the 
man  of  science,  who  holds  to  the  traditions  of  ancient 
times  and  disdains  to  make  a  source  of  profit  out  of 

'  That  this  formula  was  meant  as  a  distinction  and  privilege  fol- 
lows from  Dig.  50.  13.  1  §  6.  7. 


86  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

science.  He  gives  his  service  gratuitously  to  every  one 
who  desires  his  advice  or  instruction,  but  with  lofty 
reserve  he  keeps  far  away  from  the  quarrels  of  the 
market  place  and  the  tumult  of  business  life.  He  waits 
until  he  is  consulted ;  is  highly  esteemed  by  public  opin- 
ion, arid  regarded  far  superior  to  the  jurist  of  mere  bread 
and  butter.  The  highest  goal  of  his  ambition  in  the  time 
of  the  emperors  was  the  bestowal  of  the  "jus  respon- 
dendi,"  which  stamped  him  as  the  ofificial  juristic  oracle 
of  the  people.  The  incompatibility  of  compensation 
with  the  scientific  calling  of  the  jurist  was  so  firmly 
axiomatic  to  the  Roman  jurist  that  as  late  as  the  third 
century  in  the  time  of  the  emperors,  when  the  revolution 
above  mentioned  had  been  carried  through  in  all  the 
disciplines,  one  of  them  denied  the  teacher  of  law  his 
claim  to  a  honorarium.^"  Nay,  even  the  public  compensa- 
tion, which  all  other  publicly  appointed  teachers  had 
been  for  a  long  time  receiving,  was  still  denied  the 
teacher  of  law  in  the  time  of  Constantine;  and,  appar- 
ently, it  was  not  until  the  period  of  decadence  from  Con- 
stantine to  Justinian  that  he  was  assigned  a  salary.'* 

As  Rome  owes  to  the  Greeks  the  appropriation  of 
pay  to  art  and  science,  so  she  owes  to  the  provinces  the 

'"  Ulpian  in  Dig.  50.  13.  1  §  4.  5.  "  .  .  .  est  quidem  res  sanctissima 
civilis  sapientia,  sed  quae  pretio  nummario  non  sit  aestimanda  nee 
dehonestanda."  The  teachers  of  philosophy  also  share  in  this  doubt- 
ful distinction.  It  is  said  of  them,  "hoc  primum  profiteri  eos  oportet 
mercenariam  operam  spernere,"  as  if  a  philosopher  could  live  on 
air!  Both  are  only  allowed  to  accept  a  honorarium  offered  volun- 
tarily, "quaedam  enim  tametsi  .  .  .  honeste  accipiantur,  inhoneste 
autem  petuntur." 

"  In  Cod.  10.  52.  6.  of  Constantine,  the  "mercedes  ac  salaria"  do 
not  refer,  as  the  Glossators  assumed,  to  honorarium,  but  to  public 
compensation  (Dig.  50.  13.  1  §  5).  The  decisive  addition,  "doctores 
legum,"  which  is  wanting  in  the  original  text  of  the  code  in  Cod. 
Theod.  12.  2.  1,  was  made  by  the  compilers  of  Justinian.  -This  will 
justify  the  conclusion  in  the  text. 


§11"         SOCIAL  MECHANICS— REWARD  87 

introduction  of  salary  in  the  service  of  the  State.  The 
custom  of  the  aediles  spending  more  than  the  sums  set 
aside  by  the  senate  for  the  public  games  so  that  they 
were  obliged  in  many  instances  to  cover  the  enormous 
deficit  out  of  their  own  means,  had  become  so  prevalent 
in  the  last  century  of  the  Republic  that  whoever  did  not 
want  to  ruin  his  chances  with  the  people  and  destroy 
his  political  future  dared  not  economize  during  his 
aedileship  even  if  he  spent  his  entire  income  upon  it. 
In  return,  however,  the  public  sense  of  ethics  allowed  him 
to  recoup  himself  as  provincial  governor.  Legally  he 
received  merely  the  equipment  that  pertained  to  his 
station,  later  he  received  in  place  of  this  a  sum  of  money 
("vasarium") ;  but  as  a  matter  of  fact  his  post  was  an 
indemnification  for  the  costs  of  the  aedileship  and  muni- 
cipal magistracy.  It  was  an  authority  issued  to  him  to 
recover,  on  leaving  the  service  of  the  State,  the  invest- 
ment he  had  spent  when  he  entered  it  —  a  letter  of 
marque  issued  by  the  people  and  senate  upon  the  prov- 
inces —  and  if  one  were  not  too  clumsy  in  collecting  it 
he  had  nothing  to  fear.  The  emperors  found  it  more 
advisable  to  take  the  business  of  plundering  the  prov- 
inces into  their  own  hands,  and  to  this  end  to  redeem  the 
undesirable  competition  of  the  provincial  governors 
by  a  salary.  This  is  the  origin  of  salaries  in  the  later 
period  of  State  service  at  Rome.  It  was  soon  extended 
from  this  to  all  imperial  officials,  whereas  in  the  republi- 
can magistracies,  which  had  become  insignificant,  the 
old  order  remained. 

The  preceding  account  proves  that  for  many  centuries 
Roman  society  was  able  to  maintain  an  important 
branch  of  its  public  service  solely  by  means  of  the  ideal 
rewards  of  power,  influence,  honor,  prestige;  but  that 
it  was  obHged  in  later  times  to  call  to  its  aid  the  economic 
reward  of  money.     When  I  say,  "to  call  to  its  aid,"  and 


88  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

not  "to  put  in  place  of  the  former,"  it  is  in  view  of  an 
opinion  which  I  shall  not  be  able  to  prove  until  later 
(§  7) ;  namely,  that  the  kind  of  money  reward  which 
appears  in  the  two  spheres  mentioned  represents  not  a 
simple  case  of  economic  reward  but  forms  a  union  of 
economic  and  ideal  rewards. 

§  2.  All  Commerce  Founded  upon  Egoism;  Principle 
of  Compensation.  Compensation  in  the  world  of  com- 
merce is  only  a  particular  application  of  a  general  idea, 
which  pervades  the  whole  human  world,  the  idea  of 
retribution  ("Vergeltung").  Beginning  with  revenge, 
the  return  of  evil  for  evil,  the  idea  of  retribution  in  its 
development  always  rises  higher  and  higher  until  finally, 
risen  above  the  region  of  human  existence,  it  finds  its 
highest  conclusion  in  the  idea  of  a  divine  retribution  and 
justice.  Let  us  try  to  get  a  clear  understanding  of  the 
content  of  the  term  by  reference  to  its  linguistic  deriva- 
tion. 

The  German  word  "gel ten"  expresses  equality  of 
value.  In  the  original  transitive  sense,  now  retained 
only  in  the  composite  words  "entgelten"  and  "ver- 
gelten,"  it  signifies  the  granting  of  equality.  In  the 
intransitive  sense,  it  denotes  the  existence  thereof, 
hence  the  German  word  for  money,  "Geld"  (originally 
"Gelt"),  means  the  thing  that  is  equal  in  value  (intran- 
sitive), and  the  thing  that  equalizes  value  (transitive). 
The  oldest  use  of  the  expression  that  is  historically  trace- 
able ("geltan,"  "keltan,"  "gildan")  goes  back  to  heathen 
worship  (J.  Grimm,  "Mythologie,"  p.  34),  With  his 
thank-offering  the  man  paid  (German  "gait")  the  god 
for  the  good  which  came  to  him,  with  the  expiatory  offer- 
ing he  paid  for  the  evil  committed  by  him.  Our  present 
usage  employs  the  term  "Vergelten"  (retribution)  in 
this  sense,  and  distinguishes  it  from  "Entgelten"  (com- 
pensation).    The   latter   expression   is   appropriated    in 


§2]         SOCIAL  MECHANICS  — REWARD  89 

legal  phraseology  for  the  equalization  of  a  service,  whether 
promised  beforehand  or  to  be  expected  under  the  cir- 
cumstances C^entgeltliche'Vertrage''  — onerous  contracts) . 
The  former  expression  is  used  for  the  return  of  evil  for 
evil,  and  good  for  good,  which  was  not  contemplated 
originally. 

Organized  compensation  ("Entgclten")  in  social  life 
becomes  business  intercourse  or  commerce;  organized 
retribution  ("Vergelten")  of  the  socially  evil  becomes 
criminal  justice.  The  State,  public  opinion,  and  his- 
tory are  divided  in  the  retribution  of  the  socially  good, 
but  the  ideal  culminating  point  of  the  concept  of 
retribution  in  both  good  and  evil  is  reached  in  the  idea 
of  divine  justice.  There  is  no  idea  which  man  feels  to 
be  so  compelling  as  that  of  compensatory  equalization. 
What  the  basis  of  this  is,  whether  it  is  innate  in  man,  or 
like  many  other  ideas  which  we  regard  as  innate,  is  only 
a  result  of  historical  development,  does  not  here  concern 
us,  and  we  shall  take  up  the  question  in  its  proper  place. 

But  whatever  be  the  final  source  to  which  the  idea  of 
equalization  must  be  traced,  there  can  be  no  doubt  that 
egoism  alone  is  the  impelling  motive  of  its  realization  in 
commerce.  Commerce  is  a  complete  system  of  egoism, 
and  nothing  more.  I  do  not  mean  to  indicate  in  this  a 
defect  of  commerce  or  a  failure,  but  a  virtue;  it  is  the 
element  upon  which  its  greatness  and  strength  depend, 
and  according  to  the  perfection  of  this  element  the 
height  of  the  development  of  commerce  is  determined. 
The  more  it  succeeds  in  basing  the  guaranty  of  the  satis- 
faction of  human  wants  exclusively  upon  egoism  in  all 
relations  of  life,  and  in  replacing  benevolence  and  un- 
selfishness by  self-interest  and  the  desire  for  gain,  the 
more  perfectly  does  it  fulfil  its  task. 

I  am  aware  that  this  eulogy  of  egoism  will  arouse  oppo- 
sition in  every  one  of  my  readers  who  has  not  thought 


90  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

over  the  matter  carefully.  Egoism  in  commerce,  he 
will  object,  is  a  necessary  evil,  but  where  it  has  not  yet 
found  its  way  it  must  not  be  summoned,  and  we  must  be 
glad  that  we  can  get  along  without  it.  Let  the  reader 
make  the  trial  himself  in  a  special  case. 

Let  him  suppose  he  has  the  choice  between  a  journey 
into  a  land  where  he  can  find  hotels  everywhere,  and  into 
one  in  which  there  are  no  inns  at  all,  but  where  this 
want  is  replaced  by  a  general  hospitality.  Where  will 
he  prefer  to  guide  his  steps,  provided  there  are  no  other 
circumstances  to  influence  his  choice?  I  doubt  not  that 
he  would  decide  for  the  country  of  inns. 

Hospitality  is  a  fine  thing,  truly;  one  which  opens  the 
door  to  the  weary  wanderer,  and  the  poetic  charm  of  the 
thing  must  not  at  all  be  denied  any  more  than  the  poetic 
charm  of  robber-knights,  robbers,  and  lions;  yet  for 
practical  life  safe  streets  are  better  than  unsafe;  oxen 
and  police  officers  are  better  met  than  lions  and  robber- 
knights;  and  an  inn  is  better  than  hospitality.  For  an 
inn  gives  me  the  certainty  of  a  reception,  which  I  have 
not  in  hospitality;  and  my  money  spares  me  the  humilia- 
tion of  a  request,  of  accepting  a  favor,  of  giving  thanks  — 
my  freedom  and  independence  on  the  journey  lie  in  my 
purse.  Therefore  it  means  an  advance  which  can  hardly 
be  overestimated  when  inns  are  established  in  an  unpopu- 
lated region  where  hitherto  the  stranger  was  obliged  to 
beg  his  accommodation.  Then  only  is  a  land  of  this 
kind  really  opened  to  the  travelling  public  —  and  the 
innkeeper  becomes  no  less  important  for  travel  than  the 
merchant  is  for  the  business  of  exchange ;  both  of  them 
guarantee  the  easy  and  assured  satisfaction  of  a  certain 
class  of  human  wants;  they  contain  in  them  the  commer- 
cial organization  of  this  satisfaction;  i.  e.,  a  system  built 
upon  the  principle  of  compensation. 

The  transition  from  gratuitousness  to  compensation 


§2]'        SOCIAL  MECHANICS— REWARD  91 

or  from  favor  to  business,  that  was  shown  in  this  example, 
has  been  carried  out  in  many  other  relations,  and  is  still 
taking  place  under  our  own  eyes.  Every  one  who  helps 
in  this  transition  deserves  well  of  society,  although 
he  earns  for  his  services  blame  rather  than  recognition 
from  the  great  majority.  Most  people  see  only  the 
unpleasant  side  of  the  innovation,  viz.,  that  they  must 
hereafter  pay  for  that  which  before  they  had  for  nothing, 
without  noticing  to  what  degree  the  disadvantages  of 
the  change  are  outweighed  by  the  advantages.  I  cannot 
forbear  from  the  task  of  bringing  these  advantages  into 
fuller  light. 

Money  alone  is  really  able  to  solve  the  problems  of 
intercourse,  i.  e.,  to  establish  completely  a  thorough  sys- 
tem for  the  assured  satisfactions  of  human  wants.  The 
completeness  of  the  system  depends  partly  upon  its 
extensiveness.  Money  satisfies  all  needs,  the  noblest 
as  well  as  the  lowest;  and  to  any  extent  required,  great 
and  small.  Partly  the  working  of  the  system  depends 
upon  the  fact  that  the  requisite  conditions  for  the  satis- 
faction of  all  imaginable  needs  are  reduced  to  the  single 
one,  infinitely  simple,  ever  constant  and  wholly  calculable, 
viz.,  money.  There  are  statements  which  seem  so  com- 
monplace that  one  is  almost  afraid  to  make  them,  and 
yet  if  one  wants  to  make  a  thing  perfectly  clear  one 
must  not  always  omit  them.  An  example  of  this  is 
the  perfect  emancipatory  power  of  money.  Favor  has 
many  conditions,  money  has  no  other  conditions  than 
money.  A  favor  must  be  asked  for  with  reserve,  with 
tact;  it  has  its  moods,  its  humors  and  antipathies;  it 
may  turn  away  from  the  very  person  who  needs  it  most,  or 
at  the  time  and  in  the  circumstances  when  it  is  most 
indispensable,  and  though  it  were  always  willing  it 
retains  its  narrow  limitations.  Money  knows  nothing 
of  all  this.     Money  knows  no  dignity  of  person;   it  does 


92  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

not  indulge  in  moods;  has  no  times  when  it  is  less  acces- 
sible; and  finally  it  knows  no  limit  where  its  willingness 
becomes  exhausted.  Egoism  has  the  liveliest  interest  in 
being  at  the  service  of  everybody,  at  all  times,  to  any 
extent.  The  more  we  demand  of  it  the  more  it  does,  the 
more  we  ask  of  it,  the  more  willing  it  is.  Nothing  would 
be  more  unbearable  than  if  we  had  to  depend  upon 
favor  for  everything  that  we  need,  it  would  be  the  lot 
of  the  beggar!  Our  personal  freedom  and  independence 
depends  not  only  upon  our  being  able  to  pay  but  also 
upon  our  being  obliged  to  pay  —  our  moral  as  well  as  our 
economic  independence  depends  upon  money. 

The  Two   Principal  Forms  of  Intercourse:    First,  Ex- 
change {Difference  of  Purpose  on  Both  Sides).     The  differ- 
ence between  compensation  and   gratuitousness  is  not 
exhausted  by  money,  the  consideration  may  consist  of 
other  things  besides,  viz.,  of  objects  or  personal  service 
(p.  77).     All  such  compensatory  contracts  are  denomi- 
nated in  the  terminology  of  the  jurists,  onerous  or  bilateral 
contracts;    the  gratuitous  are  called  liberal,  lucrative  or 
unilateral.     The  psychologically  inevitable  condition  of 
the  process  in  the  former  is  the  conviction  of  both  parties 
that  what  each  receives  is  more  valuable  to  him  than 
what  he  gives;  each  party  not  merely  tries  to  gain,  but 
is  convinced  that  he  does  gain.     Without  this  conviction, 
even  though  objectively  it  is  not  in  accordance  with 
fact,  no  exchange  can  take  place.     The  objective  desig- 
nation of  the  consideration  as  equivalent,  however  true  it 
may  be,  as  will  be  seen  later,  from  the  standpoint  of 
business  intercourse,  is  decidedly  incorrect  when  looked 
at  subjectively  from  the  point  of  view  of  the  parties. 
A  consideration  which  is  for  the  party  nothing  more 
than  an  equivalent,  i.  e.,  equal  in  value  to  the  original 
service,  has  psychologically  no  force  to  effect  an  altera- 
tion of  the  existing  conditions.     To  do  this  there  is  need 


§2]         SOCIAL  MECHANICS  — REWARD  93 

of  a  preponderance,  of  a  plusvalent;  not  in  the  objec- 
tive sense  to  be  sure,  but  in  the  subjective;  both  parties 
must  be  convinced  that  they  gain  by  the  exchange. 

It  may  happen  that  this  is  really  true  for  both.  He 
who  sells  an  object  for  which  he  has  absolutely  no  use 
for  a  moderate  price  improves  his  economic  position,  for 
he  gets  something  useful  in  place  of  something  use- 
less, and  the  buyer,  too,  is  a  gainer,  who  buys  the  thing 
cheaply.  This  possibility  of  mutual  gain  in  a  business 
transaction  depends  upon  the  difference  of  need  on  the 
two  sides;  each  of  the  two  parties  has,  by  reason  of  his 
peculiar  need,  an  individual  standard  for  measuring  the 
value  of  the  two  articles  or  acts  which  form  the  object  of 
exchange;  one  which  differs  from  the  standard  of  the 
other,  and  so  it  happens  that  each  one  gains  without 
the  other  losing. 

This  therefore  is  the  logic  of  the  bilateral  contract; 
viz.,  each  one  looks  for  his  own  advantage  and  knows 
that  the  other  does  the  same,  and  the  law  admits  their 
right  to  do  so/^  It  allows  egoism  free  play,  so  far  as  the 
latter  does  not  make  use  of  prohibited  means  for  the 
carrying  out  of  its  purpose. 

The  relation  of  two  parties  to  each  other,  based  upon 
egoistic  motives  on  both  sides  as  seen  in  business  life, 
is  called  the  business  attitude.  Opposed  to  this  is  the 
attitude  of  grace  or  favor,  i.e.,  the  relation  of  the  two 
parties  in  liberal  contracts  (p.  77),  in  which  both  are 

'2  Dig.  19.  2.  22  §3.  "Quemadmoduminemendoet  vendendonatur- 
aliter  concessum  est,  quod  pluris  est,  minoris  emere,  quod  minorissit, 
pluris  vendere  et  ita  invicem  se  circumscribere,  ita  in  locationibus 
quoque  et  conductionibus  juris  est."  The  nature  of  a  relation  of 
trust  and  confidence  (agency,  guardianship,  partnership,  etc.,)  gives 
rise  to  the  opposite  state  of  affairs.  Here  "dolus"  begins  as  soon  as 
one  pursues  his  own  advantage,  whereas  in  business  relations  there 
is  no  "dolus"  unless  one  pursues  his  own  advantage  by  means  of  a 
conscious  suppression  of  the  truth. 


94  THE   CONCEPT   OF    PURPOSE     [Ch.  vii 

agreed  that  one  does  the  other  a  favor.  To  this  differ- 
ence of  position  Roman  law  attaches  important  conse- 
quences. For  example,  in  reference  to  the  dissolution 
of  the  relation,  the  measure  of  "culpa,"  the  obligation  of 
warranty,  infamy. 

The  process  in  onerous  contracts,  objectively  con- 
sidered, is  that  of  changing  the  place  of  the  objects  or 
acts  on  the  two  sides.  Each  of  the  two  things  or  acts 
seeks  the  person  with  whom  it  can  better  attain  its 
destiny,  for  whom  therefore  it  has  a  relatively  higher 
value  than  for  its  present  owner;  and  accordingly  it 
changes  its  present  place  for  another.  The  expression 
Contract  oj  Exchange,  which  the  jurist  uses  only  for  the 
exchange  of  two  objects,^^  applies  to  all  values  that  form 
the  object  of  intercourse:  articles,  money,  service.  The 
German  expression  "Verkehr"  (business  intercourse)  is 
derived  from  the  idea  of  their  turning  from  one  place  to 
another—  ("Kehren"  —  to  move,  to  turn).  The  same 
is  true  of  the  German  word  "Wandel"  in  the  phrase 
"Handel  und  Wandel"  (literal  meaning  of  "Wandel"  is 
walking,  going,  and  in  the  phrase  just  mentioned  it 
means  trade).  The  corresponding  term  in  Latin,  "com- 
mercium,"  is  borrowed  from  goods,  merchandise  ("merx," 
"mercari"),  and  emphasizes  the  element  of  community 
between  the  parties  ("com-mercium")  which  is  caused 
by  it.  Intercourse  ("Verkehr")  is  therefore  synonymous 
with  intercourse  of  exchange  ("Tausch verkehr"). 

But  commerce  ("Verkehr")  does  not  coincide  in  life 
with  Exchange  ("Tausch verkehr").  It  embraces  rather 
two  groups  of  business  transactions  of  which  only  one 
has  as  its  motive  the  exchange  of  acts,  whereas  the  other, 

''In  connection  with  the  Roman  concept  of  "permutatio." 
"Mutuum,"  loan,  is  connected  with  "mutare"  (movitare,  to  move). 
Linguistically  it  is  characterized  as  change  of  place  (of  the  fungible 
object,  with  agreement  of  subsequent  return). 


§2]"        SOCIAL  MECHANICS— REWARD  95 

on  the  contrary,  has  as  its  motive  the  union  of  persons 
for  a  common  purpose.  The  business  of  exchange  pre- 
supposes a  difference  of  need  on  both  sides,  and  accord- 
ingly also  a  difference  in  the  means  whereby  the  need 
is  to  be  satisfied,  viz.,  in  the  mutual  services.  Opposed 
to  this  is  the  case  where  the  needs  of  both  parties  are 
identical,  where  their  interests  coincide  for  one  and  the 
same  purpose.  Now  if  each  of  them  can  attain  the  pur- 
pose by  himself  alone  as  easily  and  as  surely  as  in  com- 
bination with  the  other,  there  is  no  reason  urging  him 
to  co-operate  with  his  neighbor.  The  case  is  different 
when  the  purpose  exceeds  the  powers  of  a  single  person, 
or  when  the  combined  pursuit  of  it  gives  a  prospect  of 
economy  in  the  means  to  be  expended,  or  greater  security 
in  the  attainment  of  the  purpose.  In  this  case  it  is  to 
the  interest  of  both  to  unite  their  forces  and  means. 
The  juristic  form  of  this  is  the  Contract  of  Partnership. 
Like  the  contract  of  exchange  in  the  wider  sense  given 
to  it  above,  so  the  contract  of  partnership  embraces  not 
any  particular  contract,  but  a  peculiar  sphere  of  contract 
in  commerce.  Like  the  other  it  contains  a  fundamental 
form  of  commerce,  which  is  of  unlimited  application, 
I  mean  that  of  association.  The  principal  difference 
between  these  two  fundamental  forms  of  commerce  is 
based  upon  the  contrast  of  difference  and  identity  of 
purpose.  In  exchange  the  purpose  of  the  one  differs 
from  that  of  the  other,  and  herein  lies  the  reason  of  their 
changing;  in  partnership  the  purpose,  the  aim,  is  the 
same,  and  that  is  why  they  unite.  There  is  not  and  there 
cannot  be  a  third  form ;  for  an  alternative  which  makes 
the  purpose  bringing  the  parties  together  other  than 
either  the  same  or  different  is  inconceivable.  It  is  evi- 
dent that  partnership  belongs  to  onerous  contracts,  or 
which  is  the  same,  that  here  too  the  principle  of  com- 
pensation is  in  force. 


96  THE   CONCEPT   OF   PURPOSE     [Ch  vii 

Of  these  two  fundamental  forms,  that  of  exchange  is 
inferior,  and  hence  historically  the  older.  It  is  the  primi- 
tive form  of  commerce,  from  which  the  term  itself  is 
derived.  The  most  limited  understanding  sufificed  to 
see  the  use  of  exchanging  two  things  or  acts,  but  the  idea 
of  a  common  business  operation  was  the  work  of  an  inven- 
tive and  thoughtful  mind;  and  even  in  such  a  mind  it 
became  possible  only  at  a  certain  stage  of  business 
development.** 

This  relation  of  the  two  fundamental  forms  of  com- 
merce gives  us  the  order  of  the  following  exposition. 
We  shall  turn  first  to  the  lower  and  older  form,  and  chall 
try  to  present  clearly  and  in  the  proper  order  the  vari- 
ous elements  and  formative  principles  contained  therein 
in  which  the  force  of  purpose  has  become  developed  and 
realized. 

§  3.  Reward  {Money).  Real  Performance  and  Con- 
sideration. The  simplest  formula  of  bilateral  contract  is 
the  immediate  satisfaction  of  mutual  needs.  Each  one 
of  the  two  parties  receives  the  object  or  act  which  he 
needs.     The    contract,    therefore,    performs    the    same 

"  "Societas"  as  actionable  contract  belongs  in  Rome  to  the  later 
business  law  ("jus  gentium"),  whereas  sale  in  the  form  of  "manci- 
patio,"  and  loan  in  the  form  of  "nexum"  go  back  to  primitive  times. 
To  be  sure,  this  does  not  mean  that  there  were  not  actually  contracts 
of  partnership  even  before  the  introduction  of  the  "actio  pro  socio," 
whether  non-obligatory  and  founded  purely  upon  mutual  good  faith 
("fides")  or  fear  of  public  opinion  (infamy  in  case  of  disloyalty),  or 
concluded  with  legally  binding  force  in  the  form  of  "stipulario" 
(verbal  agreement).  To  attempt  to  place  the  origin  of  partnership 
back  in  the  ancient  family  life  of  the  Romans  I  regard  as  an  error. 
So  far  as  brothers  and  sisters  continued  after  the  death  of  the  father 
their  life  in  common  as  theretofore,  it  was  legally  under  the  pro- 
tection of  the  "act.  fam.  erciscundae."  And  even  later  the  relation 
of  co-succession  was  not  brought  by  the  Roman  jurists  under  the 
point  of  view  of  partnership  any  more  than  was  that  of  joint  owner- 
ship. 


§3]         SOCIAL  MECHANICS  — REWARD  97 

function  for  both,  and  I  shall  call  this  form  of  exchange 
contract  by  the  name  of  equality  of  function. 

But  this  simplest  form  of  contract  is  at  the  same  time 
the  most  imperfect,  for  it  presupposes  that  each  party 
possesses  and  sells  the  very  thing  that  the  other  wants,  a 
condition  which  seldom  obtains,  and  which  would  make 
commerce  exceedingly  slow  and  clumsy,  if  it  could  not 
free  itself  therefrom.  The  means  by  which  it  did  free 
itself  from  the  condition  above  mentioned  contains  one 
of  the  most  ingenious  ideas  of  man^*  —  money.  The 
service  which  it  renders  commerce  is  so  clear  and  evi- 
dent that  I  shall  waste  no  words  upon  it,  and  shall 
limit  myself  to  a  single  observation. 

I  have  defined  commerce  as  the  system  of  the  satis- 
faction of  human  wants.  Is  the  definition  good  for 
money  too?  Does  money  satisfy  the  wants  of  him  who 
does  something  for  it?  Not  actually,  but  potentially. 
In  the  money  which  the  buyer  pays  him  for  the  thing,  the 
seller  gets  the  means  for  the  satisfaction  of  his  wants; 
and  he  only  has  to  find  the  right  person  who  is  able  to 
do  it,  to  obtain  the  most  unlimited  freedom  of  choice  in 
respect  to  all  forms  and  modes  of  satisfying  his  wants 
(time  —  place  —  persons  —  scope).      Money    does    not 

'*  I  cannot  refrain  from  inserting  here  for  non-jurists  the  exposition 
of  the  Roman  jurist  {Paulus)  in  Dig.  18.  1.  1.  pr.  "Origo  emendi 
vendendique  a  permutationibus  coepit.  Olim  enim  non  ita  erat  num- 
mus,  neque  aliud  merx,  aliud  pretium  nominabatur,  sed  unusquisque 
secundum  necessitatem  temporum  ac  rerum  utilibus  inutilia  per- 
mutabat,  quando  plerumque  evenit,  ut,  quod  alteri  superest,  alteri 
desit.  Sed  quia  non  semper  nee  facile  concurrebat,  ut,  cum  tu 
haberes,  quod  ego  desiderarem,  invicem  haberem,  quod  tu  accipere 
velles,  electa  materia  est,  cujus  pubHca  ac  perpetua  aestimatio  diffi- 
cultatibus  permutationum  aequahtate  quantitatis  subveniret,  eaque 
materia  forma  publica  percussa  usum  dominiumque  non  tarn  ex 
substantia  praebet  quam  ex  quantitate  nee  ultra  merx  utrumque,  sed 
alterum  pretium  vocatur. " 


98  THE  CONCEPT  OF   PURPOSE     [Ch.  VII 

therefore  satisfy  the  want  immediately,  but  it  confers  an 
absolutely  sure  title  to  the  subsequent  satisfaction  of  his 
want;  a  title  respected  by  all.  The  difference  between 
exchange  in  the  narrower  sense  and  purchase  consists 
therefore  in  the  fact  that  in  the  former  the  satisfaction 
of  the  mutual  wants  takes  place  in  one  and  the  same  act, 
whereas  in  a  contract  of  purchase  it  falls  into  several 
acts;  the  buyer  alone,  not  the  seller,  receives  in  this  case 
immediately  that  of  which  he  has  need. 

And  so  in  contradistinction  to  the  above  formula  of 
bilateral  contract,  which  rests  upon  equality  of  function, 
there  is  another  based  upon  difference  of  function,  in 
which  the  one  act  brings  about  the  actual  satisfaction 
of  the  want,  and  the  other  only  the  potential.  Or,  which 
is  the  same  thing,  there  is  on  the  one  side  a  real  or 
individual  act,  and  on  the  other  an  ideal  or  abstract 
thing,  viz.,  money.  We  get  therefore  the  following 
schema,  already  given  above  (p.  77),  which  includes  now 
all  conceivable  contracts  of  exchange  in  the  wider  sense. 

Real  Performance  Money         Contract 

(1)  Permanent  Cession 

of  a  Thing  Price  Purchase 

(2)  Temporary  Cession 

(c)  of  a  Thing  Rent  Contract  of  Lease 

{b)  of  Capital  Interest       Loan 

(3)  Service  Wages  Contract  of  Service 
{Honorarium,  Salary).  Progress  from  Real  Considera- 
tion to  Reward.  It  is  desirable  to  ha^■e  a  definite  expres- 
sion for  the  function  which  money  performs  in  all  these 
cases.  The  term  equivalent  is  not  suitable,  for  it  empha- 
sizes a  \alue  relation  of  the  two  acts  to  each  other  which 
has  nothing  to  do  with  money  as  such  —  a  thing  can 
also  be  the  equivalent  of  another  (see  above).  I  will 
permit  myself  to  use  the  concept  of  remuneration 
("Lohn"),  which  is  regularly  identified  in  scientific 
usage  with  wages,  but  which  has  a  much  wider  significa- 


§3]'     SOCIAL  MECHANICS— REWARD  99 

tion  in  ordinary  usage,  as  is  well  known.  I  propose  to 
use  this  term  for  all  the  three  cases  of  performance 
involving  money  which  were  mentioned  above.  I  shall 
therefore  understand  by  the  term  remuneration  in  the 
wider  sense  not  merely  the  wages  of  labor,  but  also  the 
purchase  price,  rent,  and  interest.  The  concept  of 
remuneration  in  the  first  sense  (wages)  will  also  be 
extended  later  on  (§7)  to  ideal  remuneration,  as 
opposed  to  economic,  i.  e.,  money,  and  to  mixed  remunera- 
tion, which  combines  ideal  with  economic.  By  this 
means  the  concept  of  remuneration  becomes  so  general 
that  we  may  designate  remuneration,  as  I  have  done  in 
the  title  of  this  chapter,  as  the  motive  or  lever  of  all 
commerce.  To  be  sure,  we  are  guilty  of  the  inaccuracy 
of  considering  only  the  perfect  form  of  exchange  (in 
return  for  money),  and  leaving  aside  the  imperfect  form 
of  two  real  performances  as  on  the  whole  insignificant 
for  commerce. 

But  has  not  the  concept  lost  perhaps  its  definiteness, 
and  at  the  same  time  its  usefulness,  by  this  extension 
of  its  meaning?  I  believe  not.  Money  and  real  per- 
formance are  the  two  forms  of  compensation,  of  the 
equalization  of  one  act  by  the  other,  which  are  opposed 
to  each  other  by  the  nature  of  the  case.  Now  although  it 
may  be  necessary  from  the  standpoint  of  the  jurist  as 
well  as  the  political  economist  to  distinguish  in  the 
function  of  money  between  wages,  price,  rent  and  inter- 
est, these  differences  are  of  no  consequence  in  the  ques- 
tion which  we  have  proposed  here,  and  which  we  have 
to  answer,  namely,  how  does  commerce  effect  the  satis- 
faction of  human  wants?  The  only  answer  to  this 
question  is,  it  effects  this  immediately  or  mediately; 
immediately  by  a  real  performance,  mediately  through 
money;  and  for  this  function  of  money  we  need  an 
expressive  term.     The  remuneration  which  the  workman 


100  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

receives  does  not  satisfy  his  want  immediately,  it 
only  gives  him  the  means  thereto.  The  same  is  true  of 
price,  rent,  interest  in  reference  to  seller,  lessor,  lender. 
Whether  it  is  immediate  necessity  that  impels  the  one 
to  work,  the  other  to  sell,  the  third  to  let;  or  whether 
it  is  only  the  desire  to  realize  in  a  suitable  manner  their 
labor  power,  their  articles  or  their  capital,  which  causes 
them  to  do  these  things,  makes  no  difference  as  far  as  the 
character  of  the  money  is  concerned  which  they  get  by 
those  transactions.  In  the  one  case  as  in  the  other  the 
money  does  not  satisfy  the  want  immediately,  it  only 
makes  subsequent  satisfaction  possible. 

§  4.  Equivalent.  The  concepts  remuneration  and 
equivalent  do  not  coincide.  The  equivalent  may  consist 
in  something  other  than  remuneration  (real  performance), 
and  remuneration  may  be  no  equivalent;  it  may  exceed 
the  amount  thereof  or  fall  below  it.  By  equivalent  we 
understand  the  equality  between  an  act  and  its  con- 
sideration, measured  by  the  value  of  goods  and  acts  as 
established  by  experience  in  commerce.  How  the  stand- 
ard is  formed  and  on  what  it  is  based  is  a  question  of 
political  econc;my,  which  we  need  not  discuss;  our  object 
is  directed  merely  to  proving  the  gain  which  accrues  to 
intercourse  from  the  promotion  of  remuneration  to 
equivalent. 

The  fixing  of  remuneration  in  a  particular  case  is  a 
matter  of  individual  agreement,  and  the  law  recognizes 
egoism  as  the  determining  factor  and  a  just  one. ^®  The 
conception  from  which  the  law  starts  is  that  each  of  the 
two  parties  has  in  mind  his  own  advantage,  each  one 
endeavors  to  use  the  disadvantage  of  the  other  man's 

18  Dig.  4.  4.  16  §  4.  "In  pretio  emptionis  et  venditionis  naturaliter 
licere  contrahentibus  se  circumvenire."  Dig.  19.  2.  22  §  3.  "... 
ita  in  locationibus  quoque  et  conductionibus  juris  est."  Cod.  4. 
44.   10.  "dolus  emtoris  .  .  .   non  quantitate  pretii  aestimatur." 


§4  SOCIAL  MECHANICS— REWARD  101 

position  in  his  own  favor.  This  disadvantage  may  rise 
to  a  position  of  actual  duress,  when  the  highest  degree 
of  want  on  the  one  side  coincides  with  the  exclusive 
possibility  of  satisfying  it  on  the  other.  In  this  case  there 
remains  no  other  choice  for  the  party  in  need  than  to 
accept  the  conditions  dictated  by  the  other  party.  The 
drowning  man  will  promise  a  fortune,  if  necessary,  for  a 
rope;  the  man  dying  of  thirst  in  the  desert  will  give  his 
pearls  away  for  a  skin  of  water;  Richard  III  in  Shakes- 
peare offers  "a  kingdom  for  a  horse"  — -the  most  insig- 
nificant thing  gains  the  highest  value  if  one's  life  depends 
upon  it. 

Is  this,  then,  the  fruit  of  egoism,  which  has  been  so 
glorified  by  us,  namely,  pitiless  exploitation  of  another's 
need!  Does  not  this  result,  which  outrages  every  moral 
feeling,  force  us  to  declare  our  whole  theory  of  egoism 
bankrupt,  and  to  admit  frankly  that  it  cannot  rise  to 
the  demand  of  commerce,  which  is  to  procure  the  regu- 
lated and  assured  satisfaction  of  human  want?  Must  we 
not  confess  that  society  needs  a  fixed  principle  by  which 
to  be  guided  in  order  that  egoism,  which  is  insatiable 
by  nature,  may  have  imposed  upon  it  from  outside  the 
restraint  which  it  does  not  bear  within  itself? 

The  egoism  of  the  one  is  opposed  by  the  egoism  of  the 
other;  the  former  endeavoring  to  take  as  much  as  pos- 
sible, the  latter  to  give  as  little  as  possible.  The  point  of 
indifference  or  the  zero  point  where  the  two  produce 
equilibrium  is  the  equivalent.  Equivalent  is  the  equili- 
brium effected  by  experience  between  performance  and 
consideration ;  it  is  an  amount  of  remuneration  (of  a 
specific  performance)  in  which  both  parties  come  to 
their  right,  and  neither  of  the  two  loses.  Equivalent  is 
the  realization  of  the  idea  of  justice  in  the  domain  of 
commerce.  For  justice,  simply  and  intelligibly  expressed, 
is  nothing  else  than  that  which  suits  all,  where  all  can 


102  THE   CONCEPT   OF   PURPOSE     [Cii.  vil 

subsist.  Accordingly,  to  enforce  as  much  as  possible  the 
principle  of  equivalence  in  all  relations  is  one  of  the  chief 
problems  in  the  life  of  commerce. 

How  does  society  solve  it?  Does  it  solve  it  by  law? 
If  it  is  true  that  it  is  a  problem  of  justice,  then  it  seems 
inevitably  a  legal  problem;  for  what  justice  demands 
must  be  realized  by  law.  According  to  my  opinion, 
however,  it  is  not  so,  but  when  it  is  made  out  that  the 
interest  of  all  demands  a  certain  order,  we  must  still  con- 
sider first  whether  the  interest  is  not  strong  enough  to 
establish  the  order  by  itself.  In  this  case  there  is  no 
need  of  a  law  —  no  law  finds  it  necessary  to  prescribe 
marriage  and  to  forbid  suicide. 

Now,  does  commerce  possess  the  means  to  realize  the 
idea  of  equivalent  out  of  its  own  power?  On  the  whole, 
this  must  evidently  be  the  case;  no  law  prescribes  the 
prices  for  the  laborer,  manufacturer,  shop-keeper,  etc., 
and  yet  they  observe  a  price.  Evidently  not  from  dis- 
interested motives  or  as  social  doctrinaires  in  order  to 
realize  the  idea  of  equivalent,  but  because  they  cannot 
do  otherwise.  Who  compels  them?  No  one  else  than 
their  own  egoism.  Egoism  forms  in  this  case  its  own 
corrective.  And  it  does  this  in  a  two-fold  manner.  First, 
by  means  of  competition.  The  egoism  of  the  seller 
who  tries  to  force  too  high  a  price  is  paralyzed  by  the 
egoism  of  another  who  prefers  rather  to  sell  for  a  moder- 
ate price  than  not  to  sell  at  all,  and  the  egoism  of  the 
buyer  who  offers  too  little  is  paralyzed  by  that  of  another 
who  offers  more  —  competition  is  the  social  self-adjust- 
ment of  egoism. 

But  no  matter  how  true  this  may  be  on  the  whole, 
there  may  be  special  cases  or  peculiar  relations  in  which 
competition  is  temporarily  or  even  permanently  ex- 
cluded. The  only  innkeeper,  physician,  apothecary  in 
the  place  has  no  competition  to  be  concerned  about. 


Ml*        SOCIAL  MECHANICS— REWARD  103 

and  even  when  there  is  more  than  one  it  may  happen 
that  a  person  who  has  need  of  their  services  finds  him- 
self in  such  a  position  that  he  can  address  himself  to  one 
of  them  only,  and  must  submit  to  the  conditions  laid 
down  by  him.  The  surgeon  who  has  completed  the  opera- 
tion, but  has  not  yet  stopped  the  flow  of  blood,  has  the 
patient  in  his  power,  and  similarly  the  innkeeper  at  whose 
place  the  patient  is  staying.  Who  or  what  prevents  them 
from  asking  an  extravagant  price  for  the  completion  of 
the  operation,  and  the  continuance  of  the  lodging? 
If  they  count  on  future  patients  and  guests,  it  is  regard 
for  their  own  advantage.  As  the  egoism  of  the  one 
holds  in  checl^  the  egoism  of  the  other  by  means  of  com- 
petition, so  in  this  case  egoism  holds  itself  in  check.  The 
egoistic  exploitation  of  the  present  is  opposed  by  a 
regard  for  the  future.  The  egoist  balances  the  two 
possible  advantages  against  each  other,  and  sacrifices 
the  advantage  of  the  moment,  no  matter  how  great  it  is, 
in  order  to  secure  the  smaller  but  permanent  advan- 
tage for  the  rest  of  his  life.  Concern  for  the  future  is 
the  individual  self-regulation  of  egoism  in  those  cases 
where  competition,  i.  e.,  the  social  regulation,  fails  to 
act. 

But  in  order  to  be  able  to  look  into  the  future  one 
must  have  an  eye  to  do  it  with,  and  the  eye  of  most 
people  is  so  dull  that  it  does  not  carry  them  beyond  the 
present.  Others  again  have  such  a  weak  will  that  they 
cannot  resist  the  temptation  to  sacrifice  the  future  to 
the  present  moment,  and  it  is  even  possible  that  one 
enormous  extortion  ^'  outweighs  the  loss  of  the  entire 

"  I  use  the  expression  here  and  in  the  sequel  not  in  the  criminal 
sense,  but  in  the  economical,  to  denote  the  exploitation  of  the  con- 
dition of  necessity  of  another  for  the  purpose  of  raising  the  price 
or  the  compensation  above  the  equivalent.  Carried  on  systemati- 
cally or  as  a  matter  of  business,  extortion  becomes  usury.     We  must 


104  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

future,  or  even  that  it  may  seem  practicable  to  practice 
extortion  as  a  permanent  business  (usur\).  Here  the 
protection  which  egoism  offers  against  itself  fails,  and 
when  the  dangers  which  egoism  threatens  assume  a  seri- 
ous aspect  there  is  nothing  left  to  society  but  the  means 
whereby  it  always  tries  to  ward  off  the  dangerous  excesses 
of  egoism,  viz.,  the  law.  The  laws  which  thus  curb  the 
excesses  of  egoism  in  commercial  intercourse  are :  legal 
tariffs  of  charges ;  laws  limiting  the  rate  of  interest ;  penal- 
ties for  usury,  etc.^^  Experience  has  shown  that  many  of 
these  attain  their  purpose  very  imperfectly,  and  the 
public  opinion  of  our  time,  in  favor  of  freedom  of  trade, 
looks  upon  them  with  disfavor  and  would  prefer  to  set 
them  aside  entirely  on  the  ground  of  bein  a  hindrance 
to  business,  as  in  fact  has  been  done  with  many  of  them 
already.  There  will  be  need  of  more  numerous  and  bitter 
experiences  before  people  will  become  aware  again  what 

distinguish  between  extortion  and  fraud.  The  former  speculates 
on  the  opponent's  condition  of  necessity,  the  latter  on  his  ignorance 
of  the  real  price  or  his  disinclination  to  make  the  disproportion 
between  the  latter  and  the  price  demanded  a  subject  of  unpleasant 
discussions. 

^*  The  different  legislations  vary  extraordinarily  in  this  connection. 
The  ancient  Roman  law  directed  its  attention  almost  altogether 
upon  usury;  the  later  Roman  law  added  some  other  matters  (extor- 
tion on  the  part  of  the  physician,  Cod.  10.  52.  9,  Dig.  50.  13.  3;  on 
the  part  of  the  lawyer,  the  so-called  "pactum  de  quota  litis"  and 
"palmarium"  2.  14.  53,  50.  13.  1  §  12.  Cod.  2.  6.  5,  prohibition  of 
the  "lex  commissoria"  in  case  of  pledge,  rescinding  a  contract  of  sale 
on  the  ground  of  the  so-called  "laesio  enormis,"  and  many  other 
instances).  Mohammedan  law  no  doubt  went  furthest  in  the  oppo- 
site direction.  It  imposes  a  duty  upon  the  vendor  to  state  the  true 
value,  and  allows  only  tradespeople  to  reserve  a  profit  for  them- 
selves over  and  above  the  value  of  the  object.  It  forbids  entirely 
auction  sales,  where  the  price  can  be  easily  raised  above  the  real 
value.  N.  von  Tornainv,  "Das  Moslemitische  Recht,"  (Leipzig, 
1855),  p.  92,  93.  This  regulation  reminds  one  of  the  prohibition  of 
interest  in  the  canon  law. 


§4]'        SOCIAL  MECHANICS  — REWARD  105 

dangers  to  society  individual  egoism,  freed  from  all  bonds, 
carries  with  it,  and  why  the  past  has  found  it  necessary 
to  put  a  check  upon  it.  Unlimited  freedom  of  trade  is 
a  license  for  extortion,  a  letter  of  marque  for  robbers  and 
pirates  with  the  right  of  holding  up  all  who  fall  into  their 
hands  —  woe  to  the  victim!  That  the  wolves  cry  for 
freedom  is  easy  to  understand.  But  when  the  sheep, 
as  has  often  been  the  case  in  this  question,  join  in  the 
cry,  they  only  show  thereby  that  they  are  sheep. 

The  authority  which  I  thus  claim  on  behalf  of  legisla- 
tion is  in  no  conflict  with  my  fundamental  conception 
of  commerce  as  the  system,  based  upon  egoism,  of  the 
satisfaction  of  human  wants.  I  do  hold  firmly  to  the 
view  that  egoism  is  the  motive  power  of  all  commerce, 
and  that  it  alone  is  able  to  solve  the  problem.  The 
idea  of  replacing  it  by  coercion  is  so  impossible  that  one 
should  try  to  think  it  out  if  only  in  order  to  become  the 
better  aware  how  inseparably  the  success  of  labor  is 
connected  with  the  reward  of  free  service.  To  regulate 
work  by  coercion  instead  of  by  reward  would  mean  to 
change  society  into  a  workhouse,  and  to  limit  the  national 
work  to  the  work  of  the  hands,  for  only  the  hands  can  be 
coerced,  not  the  spirit.  But  even  in  manual  labor  coer- 
cion^ cannot  take  the  place  of  remuneration.  Coercion 
makes  egoism  an  antagonist  to  work;  reward  makes 
it  an  ally ;  for  when  work  is  not  free  the  workman  has 
an  interest  to  work  as  /t7//e  as  possible ;  when  the  work  is 
free  his  interest  is  to  work  as  much  as  possible.  In  the 
former  case  he  deceives  his  master,  in  the  latter,  himself. 
Coercion  is  effective  only  so  long  as  the  whip  is  in  sight; 
remuneration  works  continually. 

But  though  I  am  convinced  that  there  is  no  other 
motive  power  of  commerce  than  egoism,  I  am  just  as 
firmly  persuaded  on  the  other  hand,  that  society  has  the 
right  to  check  the  excesses  of  the  selfish  motive  when 


106  THE   CONCEPT   OF   PURPOSE     [Cn.  vii 

these  become  dangerous  to  the  success  of  society.  In 
my  eyes  there  is  no  error  more  serious  than  the  idea  that 
a  contract  as  such,  as  long  as  its  content  is  not  illegal  or 
immoral,  has  a  just  claim  upon  the  protection  of  the  law. 
In  the  second  part  of  this  work  I  shall  have  occasion  to 
combat  this  error;  here  I  content  myself  with  a  pro- 
test. It  is  the  right  as  well  as  the  duty  of  society  to  set 
its  own  interests  against  those  of  individual  egoism.  But 
the  interests  of  society  are  directed  to  that  which  suits 
not  only  one  particular  person  but  all ;  which  enables  all 
people  to  subsist;  and  this  is,  as  has  already  been  re- 
marked above  (p.  101),  nothing  else  than  justice.  Jus- 
tice is  above  freedom.  The  individual  exists  not  only 
for  himself,  but  also  for  the  world  (p.  51)  —  therefore 
freedom,  that  which  is  expedient  for  the  individual,  must 
be  subordinated  to  justice,  which  is  for  the  advantage 
of  all. 

The  social  problem  just  treated,  of  the  advance  of 
remuneration  to  equivalent,  or  of  the  realization  of  the 
idea  of  justice  in  commerce,  is  closely  connected  with  a 
phenomenon  to  which  I  now  pass;  the  significance  of 
which,  however,  is  not  at  all  exhausted  by  the  fact  that 
it  has  this  one  problem  to  solve. 

§  5.  Organization  of  Work  in  the  Form  of  a  Vocation, 
Business  or  Trade.  By  vocation  ("Beruf")  in  the  social 
or  objective  sense,  in  contradistinction  to  the  individual 
or  subjective  sense  of  the  word,  i.  e.,  the  subjective 
qualification,  the  inner  voice,  which  "calls"  ("vocare," 
"rufen")  a  man  to  a  task,  we  understand  a  definite  kind 
of  activity,  for  which  the  individual  puts  himself  perma- 
nently at  the  disposition  of  society :  his  social  post.  I  f  the 
vocation  is  combined  with  the  economic  purpose  of  the 
subject  to  make  his  living  thereby,  it  is  called  a  trade 
or  business.  A  trade  or  business  is  therefore  a  branch  of 
work /or  which  and  from  which  the  individual  intends  to 


§5]         SOCIAL  MECHANICS— REWARD  107 

live.  In  the  phrase /or  which  we  have  the  relation  of  the 
business  to  society;  in  the  phrase /row  which  we  have  its 
relation  to  the  subject.  The  individual  solicits  ("wirbt") 
from  society  ("Ge-werbe")  in  order  to  gain  thereby; 
he  serves  ("dient")  it  in  order  to  profit  ("verdienen") 
himself.  This  brings  no  discredit  according  to  our 
present  ideas,  which  are  essentially  different  from  those 
of  antiquity  (p.  81).  It  is  dishonorable  neither  to  the 
most  eminent  nor  to  the  most  lowly.  Work  is  no  dis- 
grace, and  neither  is  the  acceptance  of  pay  for  the  work 
of  one's  vocation.  We  are  in  the  habit  of  seeing  a  dis- 
honorable element  only  when  one  allows  himself  to  be 
paid  for  a  service  which  does  not  constitute  his  vocation. 
When  a  porter  takes  a  man  from  the  station  to  the  hotel, 
every  one  finds  it  proper  that  he  should  want  to  be  paid 
for  it.  In  any  other  person  we  should  call  it  mean. 
Why?  The  one  makes  his  living  from  these  services; 
they  belong  to  his  vocation,  and  pay  for  the  work  of 
one's  vocation  is,  in  the  eyes  of  society,  an  equivalent  not 
merely  for  the  particular  service,  but  at  the  same  time 
for  the  adoption  of  a  vocation  which  is  useful  to  society. 
This  ensures  his  permanent  readiness  thereto;  and  only 
he  who  lives /or  the  work  shall  live  by  it. 

He  who  takes  up  a  definite  business  declares  thereby 
publicly  his  fitness  and  inclination  for  all  services  con- 
nected with  it.  The  public  receives  the  assurance  that 
every  one  who  needs  him  can  count  on  him,  and  he  gives 
every  one  the  authority  to  call  upon  him.^^     His  own 

^*  If  he  does  not  possess  the  ability  he  is  a  bungler,  who  does  not 
belong  to  the  trade,  and  whom  an  intelligent  social  policy  commands 
to  keep  at  a  distance  in  the  interest  of  business  as  well  as  in  the 
interest  of  the  public.  This  was  the  aim  of  the  master-piece  among 
artisans  in  the  old  organization  of  the  guilds.  The  same  purpose 
is  intended  at  the  present  time  by  the  State  examinations  of  lawyers, 
notaries,  physicians,  druggists,  mid  wives,  teachers  of  private  insti- 
tutions, etc. 


108  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

interest,  to  be  sure,  and  the  spur  of  competition  guar- 
antee as  a  rule  his  readiness;  but  both  motives  may  fail 
sometimes,  and  what  then?  Has  he  a  right  from  a  sense 
of  comfort  or  ill  humor  to  refuse  the  man  who  needs  his 
services?  Has  the  innkeeper  a  right  to  refuse  the 
stranger;  the  shopkeeper,  baker,  butcher  to  refuse  the 
customer;  the  apothecary,  the  physician  to  refuse  the 
patient ;  the  law>'er  the  client  ?  Every  true  man  of  busi- 
ness has  the  feeling  that  he  has  vot  the  right ;  he  is  aware 
that  he  would  suffer  in  public  opinion.  Why?  No  one 
finds  fault  with  the  owner  of  a  house  if  he  does  not  want 
to  let  or  sell  his  vacant  house.  Why,  then,  should  we 
find  fault  with  the  business  man  when  he  withholds  his 
services  from  those  who  desire  them?  Because  by  the 
adoption  of  his  particular  vocation  he  has  given  society 
an  assurance,  which  he  is  not  making  good.  All  those 
who  pursue  a  public  business  are  public  persons,  i.  e., 
they  exist  for  the  public,  and  are  in  duty  bound  to  serve 
them.  Public  opinion  sees  in  their  vocation  a  position 
of  obligation  toward  society. 

Therefore  it  withdraws  its  respect  from  the  business 
man  when  he  neglects  his  business,  when  he  is  lazy  or 
unreliable,  no  matter  how  respectable  he  may  be  other- 
wise. It  declares  him  incompetent  and  puts  a  low  esti- 
mate upon  him  if  he  does  not  understand  his  business, 
whereas  it  respects  the  competent  business  man,  even  if 
in  other  respects  it  may  see  a  good  deal  to  object  to  in  him. 
And  this  standard  of  social  serv'ice  by  which  it  measures 
him  is  also  his  own.  It  is  that  of  the  "honor"  of  the 
competent  business  man,  his  "honor"  does  not  allow 
him  to  neglect  his  business,  to  deliver  poor  work,  etc. 
What  has  honor  to  do  with  business?  The  answer  is: 
honor  in  the  objecti\e  sense  (the  respect  of  the  world) 
is  the  recognition  of  the  social  worth  of  the  person;  in 
the  subjective  sense  it  is  one's  own  feeling  and  the  actual 


5  5]    •     SOCIAL  MECHANICS— REWARD  109 

living  up  to  his  worth.^"  Honor  is  determined  by  those 
elements  which  fix  the  value  of  the  person  for  society, 
and  hence  also  his  special  social  task.  The  tasks  of  the 
artisan,  the  physician,  the  lawyer  are  different,  but  to 
summon  up  all  one's  powers  in  their  fulfillment  is  counted 
to  them  all  as  an  honor;  to  neglect  them,  as  a  dishonor. 
A  good  artisan  will  find  it  just  as  incompatible  with  his 
honor  to  deliver  careless  work  as  a  conscientious  physician 
or  lawyer  to  leave  his  patients  or  clients  in  the  lurch. 
Whoever  does  so  makes  his  name  suffer.  But  "name" 
("Ruf")  and  "calHng"  ("Beruf")  are  very  closely  con- 
nected. The  manner  in  which  a  man  responds  to  his 
vocation  is  that  which  society  as  a  rule  throws  into  the 
scales  first  in  judging  a  person;  and  according  to  this  it 
determines  his  ability,  i.  e.,  his  fitness  for  society. ^^ 

It  is  part  of  the  egoism  of  society  that  it  does  not  ask 
what  the  man  is  in  himself,  but  what  he  is  for  it.  To  be 
nothing  to  society,  to  live  only  for  one's  self  is  no  satisfac- 
tory mode  of  existence,  to  be  sure,  but  at  least  a  tolerable 
one;  but  nottobe  to  society  what  one  is  weaw/ to  be,  i.  e., 
to  be  incompetent,  is  a  feeling  so  oppressive  and  worrying 
that  it  cannot  be  completely  compensated  for  by  any- 
thing else.  Whereas,  on  the  contrary,  loyal,  energetic 
fulfilment  of  the  duties  of  one's  vocation  is  able  to  keep 
one  up  even  under  hard  blows  of  fate.  It  keeps  before 
him  the  fact  that  even  if  his  life  has  been  robbed  of  its 
worth  and  charm  for  himself,  it  still  has  at  least  worth 
and  significance  for  others. 

Duty  represents  that  side  of  vocation  which  addresses 
itself  to  society;    the  pecuniary  return  represents  the 

^  For  a  justification  of  this  definition,  see  Vol.  II,  p.  502  and  Vol. 
Ill,  in  connection  with  the  Social  System  of  Coercion  ("Soziales 
Zwangsystem").     [See  above  Ch.  VI,  note  3.  —  Translator], 

^'  For  the  connection  of  the  concept  of  abiHty  with  that  of  virtue, 
see  II,  no.  19. 


110  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

side  which  addresses  itself  to  the  individual.  And 
although  the  latter  aspect  may  now  and  then,  in  the  case 
of  a  particular  person  who  does  not  need  the  pay,  be 
without  any  significance,  still  it  is  so  influential  and 
decisive  in  its  total  effect  that  it  is  this  which  makes  the 
relation  and  the  person  what  experience  shows  they  are 
and  are  meant  to  be.  He  who  devotes  himself  to  a 
definite  vocation  pledges  thereby  to  society  his  entire 
existence  for  the  purpose  of  carrying  out  the  task  under- 
taken by  him;  and  so  its  interest  becomes  his  interest. 
If  he  wishes  to  prosper  he  must  devote  to  it  his  whole 
power,  his  ability  and  knowledge,  his  thinking  and  feel- 
ing, his  will  and  endeavor.  He  must  not  wait  until 
society  expresses  a  need,  he  must  anticipate  it ;  he  must 
guess  its  wishes  and  thoughts  even  before  they  are 
uttered.  He  must  teach  it  wants  or  forms  of  satisfying 
them  which  it  did  not  know  before;  like  a  sick-nurse  he 
must  know  how  to  listen  to  every  breath  of  society,  and 
like  a  physician  he  must  know  how  to  feel  the  lowest 
pulse  beat  of  the  social  need,  and  to  diagnose  it.  Skill 
or  the  lack  of  skill  in  judging  of  the  social  need,  always 
different  and  infinitely  varying  in  place  and  time,  sig- 
nifies for  him  wealth  or  poverty. 

What  has  been  said  so  far  shows  sufficiently  the  great 
importance  of  a  vocation  for  social  life.  Every  vocation 
represents  the  organization  of  the  mode  of  social  activity 
represented  by  it,  and  hence  contains  for  society  a 
guaranty  of  the  assured,  regulated  and  constant  satis- 
faction of  this  need.  Commerce,  we  may  say,  has  not 
actually  fulfilled  its  task  until  it  has  produced  a  vocation 
for  its  service.  Therefore  the  extension  and  perfection 
of  the  organization  forms  the  standard  for  judging  the 
stage  of  development  of  commerce.  The  lack  of  a  par- 
ticular vocation  in  the  economic  system  of  a  given  time 
is  a  proof  that  the  corresponding  need  was  not  yet  felt 


§5]    '     SOCIAL  MECHANICS— REWARD  111 

then  to  the  extent  of  producing  an  assured  form  of  satis- 
fying it.  In  a  country  in  which  there  are  ten  or  a  hun- 
dred times  more  distilleries  than  book  stores,  circulating 
libraries,  and  educational  institutions  for  women,  the 
need  which  the  population  feels  for  brandy  is  evidently 
far  stronger  than  its  desire  for  spiritual  nourishment  and 
the  education  of  women.  The  presence  or  absence  of  a 
particular  vocation,  its  numerical  representation,  in 
general  its  statistics,  form  an  absolutely  trustworthy 
index  of  the  intensity  of  the  need  corresponding  to  it. 
Where  the  need  is  not  felt  at  all  or  not  in  the  requisite 
measure,  the  vocation  as  an  organized  branch  of  industry 
is  impossible,  but  where  it  has  sufficiently  extended  itself, 
the  vocation  is  not  slow  to  make  its  appearance.  The 
same  is  true  here  as  when  nature  awakens  in  the  spring. 
So  long  as  there  is  not  the  necessary  heat,  no  tree  sprouts; 
but  as  soon  as  the  sprouting  takes  place,  it  is  a  proof 
that  the  necessary  amount  of  heat  has  appeared.  If  the 
economic  system  is  what  it  ought  to  be,  then  the  aggre- 
gate of  human  needs  on  the  one  side  must  find  a  coun- 
terpart, completely  adequate  to  it,  in  the  system  of 
organized  branches  of  industry  on  the  other  side.  At  the 
present  time  there  is  probably  scarcely  anything  that  is 
wanting  in  this  connection.  Man  just  as  he  is,  as  he 
thinks  and  strives,  with  all  the  needs  of  his  body  and 
mind,  with  all  his  interests,  the  lowest  as  well  as  the 
highest  —  what  wish,  what  desire  can  he  utter  for  the 
satisfaction  of  which  there  is  not  ready  at  hand  some 
kind  of  vocation?  There  is  only  one  limit,  and  this  a 
natural  one,  which  stands  in  the  way  of  the  absolute 
carrying  out  of  that  organization,  and  that  is  the  immov- 
able object.  There  are  all  sorts  of  commerce,  from  trade 
in  rags  up  to  that  in  art,  but  there  is  no  trade  in  immov- 
able objects.2^  If  Qj^g  wants  to  buy  or  farm  real  estate, 
^  Accordingly  our  Commercial  Code  restricts  the  concept  of  com- 
modity to  movable  objects.  Similarly  the  Roman  law  restricts  the 
concept  of  "merx"  to  the  same  things,  D.  50.  16.  66. 


112  THE   CONCEPT   OF   PURPOSE      [Ch.  VII 

or  rent  a  dwelling,  he  must  apply  to  a  private  person; 
there  is  nowhere  in  the  world  a  merchant  who  deals 
in  estates  or  houses.  The  first  step  in  this  direction 
towards  organization  has  been  made  by  building  socie- 
ties in  great  cities  who  build  houses  for  the  purpose  of 
selling  them ;  or  dwellings  for  workmen  for  the  purpose 
of  letting  them;  a  branch  of  industry  which  probably 
has  a  great  future  before  it. 

A  peculiar  kind  of  vocation  is  the  business  of  the 
middle-man,  as  I  might  call  it,  i.  e.,  the  mediation  between 
those  who  are  looking  for  objects  or  services  and  those 
who  are  able  to  furnish  them  (brokerage,  intelligence 
office).^  In  many  relations  in  which  commerce  still 
contents  itself  at  the  present  day  with  the  middle-man's 
agency,  it  w^ill  probably  in  the  course  of  time  replace  it 
with  more  direct  methods  of  doing  business.  The  busi- 
ness of  providing  money  is  clearly  tending  that  way. 
The  simplest  and  therefore  also  the  original  form  of 
dealing  in  money  is  this,  namely,  that  he  who  needs 
money  seeks  the  private  person  who  is  in  a  position  to 
advance  it  to  him.  The  next  form  is  when  both  apply 
to  the  middle-man,  who  negotiates  the  raising  as  well  as 

^^  In  Rome  the  business  of  the  middL-man  was  very  completely 
organized  in  the  most  various  directions  in  the  time  of  the  Empire. 
In  money  transactions  it  existed  long  before  that  time.  The  banker 
("argentarius")  undertook  the  agency,  lending  out  the  moneys 
entrusted  to  him  (either  in  his  own  name  or  in  the  name  of  the 
lender),  collecting  the  interest  and  crediting  it.  Later  was  intro- 
duced the  broker  (D.  50.  14.  2:  "proxeneta  faciendi  nominis,  ut  multi 
solent").  The  business  of  the  broker  in  Rome  was,  as  the  language 
indicates  ("proxeneta,"  "proxeneticum,"  "philanthropia,"  "her- 
meneuticum"  1.  3.  ibid.),  of  Greek  origin.  In  the  time  of  the  Empire 
there  were  in  Rome,  just  as  with  us,  special  intelligence  offices  for 
positions  of  all  kinds,  D.  50. 14. 3:  "sunt  enim  hujusmodi  hominum  (ut 
in  tarn  magna  civitate)  officinae."  They  were  even  more  needed  there 
than  with  us  now,  where  the  same  purpose  is  served  by  advertise- 
ments in  the  public  papers. 


§5]*     SOCIAL  MECHANICS  — REWARD  113 

the  investment  of  the  money.  In  the  last  form  the 
lender  gives  up  his  money  to  the  banker  who  undertakes 
to  lend  at  his  own  risk,  and  relieves  his  client  from  the 
trouble  of  search  and  from  the  risk  of  loss.  Banking  is 
the  most  complete  form  of  dealing  in  money,  and  the 
advantage  for  all  three  persons  involved  is  so  evident 
that  it  is  likely  it  will  gradually  in  the  course  of  time 
suppress  the  two  imperfect  forms. 

We  started  in  our  preceding  discussion  from  the  view 
that  the  formation  of  the  various  vocations  runs  parallel 
to  the  development  of  human  needs;  and  the  view  is 
confirmed  by  experience.  But  no  reason  has  yet  been 
given  why  a  particular  need  should  be  satisfied  precisely 
in  the  form  of  a  particular  vocation.  I  am  almost 
tempted  to  omit  it,  for  everybody  knows  the  reason; 
namely,  the  division  of  labor.  The  advantage  which 
this  brings  to  the  workman  as  well  as  to  society  is  so 
plain  that  it  could  not  have  escaped  the  notice  of  man 
even  in  the  lowest  stage  of  the  development  of  com- 
merce. In  the  time  in  which  A  produces  10a  in  his 
special  business,  and  B  lOb  in  his,  A  would  perhaps  pro- 
duce only  one  b,  and  B  only  one  a.  When  the  one  limits 
himself  to  a,  and  the  other  to  b,  and  both  then  inter- 
change a  and  b,  the  former  gains  9a,  the  latter  9b,  and 
this  gain  of  9a  -f  %  is  of  benefit  not  only  to  them,  but, 
in  the  cheaper  price  of  the  two  products,  ultimately  to 
the  entire  public.  No  sailor  would  be  so  fooHsh  as  to 
make  his  own  boots,  and  no  shoemaker  would  be  so  fool- 
ish as  to  make  his  own  coat.  Each  of  the  two  knows 
that  he  will  be  better  off  if  he  buys  them,  and  that  both 
of  them  save  labor  power  in  directing  it  exclusively  to 
one  particular  branch  of  work. 

I  sum  up  the  above  discussion  in  the  statement  that  a 
vocation  signifies  the  social  organization  of  the  work  as 
well  as  of  the  satisfaction  of  a  need. 


114  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

But  this  does  not  by  any  means  exhaust  the  signifi- 
cance of  vocations  for  the  economic  system ;  for  we  ha\'e 
a  second  and  a  third  principle  associated  with  the  first. 

The  second  is,  a  vocation  is  the  organization  of  reward. 
The  organization  of  reward  consists  in  its  promotion 
from  the  vacillating  and  accidental  character  of  a  rate 
measured  according  to  purely  indi\idual  estimate  to  the 
uniformity  and  certainty  of  a  universal  standard  of 
value.  In  other  words,  it  is  the  advance  from  a  purely 
individual  standard  of  measurement  to  the  realization  of 
the  idea  of  equivalent.  The  influence  which  the  vocation 
exerts  in  this  respect  is  twofold ;  it  determines  the  amount 
of  the  equivalent,  and  it  secures  the  practical  mainte- 
nance of  the  same.  It  accomplishes  the  former  by  fix- 
ing, on  the  basis  of  constantly  repeated  experience,  the 
measure  and  the  costs  of  the  work  necessary  to  produce 
the  service.  Only  he  is  able  to  do  this  who  has  devoted 
his  whole  power  and  his  whole  life  to  the  problem.  He 
alone  knows  what  work  costs;  and  the  possible  errors  in 
his  experience,  which  may  be  due  to  the  influence  of 
special  individual  factors,  are  rectified  by  the  experience 
of  all  the  other  people.  Thus  current  prices  are  the 
product  of  the  experience  of  the  entire  trade,  i.  e.,  of 
thousands  and  millions  of  individuals,  who  have  figured 
on  the  problem  and  are  constantly  figuring  on  it  anew. 
It  is  not  the  particular  isolated  job  which  they  take  into 
consideration,  but  the  job  in  connection  with  the  whole 
of  life,  as  an  aliquot  part  of  it,  hence  with  reference  to 
the  necessary  preparation  thereto,  to  the  continual 
readiness  for  service  that  business  demands,  and  the 
involuntary  stoppages  in  work  caused  thereby,  etc.  The 
honorarium  of  the  physician  and  the  lawyer  must  pay 
not  merely  for  the  prescription  or  the  opinion,  but  also 
for  the  period  of  study;  the  pay  of  the  porter,  of  the  cab- 
driver,  of  the  midwife  must  indemnify  these  persons  for 


§5]-        SOCIAL  MECHANICS— REWARD  115 

the  involuntary  waiting  which  is  necessarily  connected 
with  their  business  —  the  customer  must  pay  for  the 
time  when  the  porter  stands  idle  on  the  street  corner, 
when  the  cab-driver  sleeps  on  the  box,  and  the  midwife 
has  a  holiday.  In  the  case  of  the  day  laborer  alone  this 
does  not  hold  good ;  the  daily  wage  is  for  him  in  reality 
just  what  he  calls  it,  the  wage  of  the  day,  i.  e.,  the  equiva- 
lent of  the  particular  period  of  time  which  he  gives  up, 
without  any  reference  to  a  time  of  preparation  or  wait- 
ing outside  of  it. 

As  the  branch  of  industry  determines  the  right  amount 
of  the  equivalent,  so  it  secures  the  actual  maintenance  of 
the  same.  He  who  has  occasion  to  perform  a  service, 
or  to  sell  or  let  a  thing,  only  sporadically,  may  demand 
for  it  the  price  that  he  can  get;  but  he  who  makes  a 
regular  business  out  of  certain  services,  or  out  of  selling 
or  letting,  has  an  interest  in  taking  the  price  which  is  his 
due  (p.  102). 

Accordingly  the  vocation  may  be  designated  the  regu- 
lator of  compensation.  The  compensation  which  it 
fixes  is  in  the  long  run  always  the  right  one,  i.e.,  an  amount 
which  corresponds  to  the  service,  and  hence  fair  and  just 
for  both  parties.  Society  has  the  most  vital  interest  in 
preventing  remuneration  from  being  reduced  below  its 
proper  measure,  for  a  just  price  is  the  condition  of  a 
just  work.  The  vocation  itself  must  suffer  when  it  does 
not  get  its  right.  Therefore  he  who  lowers  the  prices 
below  this  measure  is  not  a  benefactor  of  society,  but 
an  enemy  thereof,  for  he  attacks  the  foundation  of  the 
entire  vocation  or  business,  viz.,  the  equilibrium  estab- 
lished by  experience  between  work  and  compensation. 
His  purpose  in  the  matter,  whether  he  does  it  for  his  own 
profit,  or  in  order  to  make  a  sacrifice,  is  of  no  conse- 
quence. The  popular  instinct  correctly  appreciates  the 
social  danger  of  such  a  proceeding.     On  this  basis  rested 


IIG  THE   CONCEPT  OF   PURPOSE     [Ch.  vil 

the  social  ostracism  of  the  unlicensed  artisan  in  the  era  of 
trade  guilds,  and  the  license  of  persecution  which  the 
system  recognized  ("Bonhasenjagen").  The  man  be- 
longing to  the  craft  exercises  his  business  openly  in  the 
workshop  or  in  the  shop,  the  unlicensed  artisan  does  it 
secretly  and  by  stealth,^  and  is  hunted  down  like  the 
hare  in  a  kitchen  garden;  both  depending  upon  others 
for  their  support.  The  pay  which  business  yields  is 
due  to  him  who  has  devoted  himself  to  it,  for  pay  is  the 
equivalent,  as  has  been  shown  above  (p.  114),  not  merely 
of  the  particular  work,  but  of  the  entire  vocation,  from 
which  the  work  proceeds;  the  equivalent  for  training, 
preparation  and  personal  and  material  readiness  to 
serve.  Every  branch  of  industry  has  developed  by 
experience  an  equilibrium  between  burdens  and  advan- 
tages, duties  and  rights.  He  who  appropriates  the 
advantages  alone,  without  taking  upon  him  the  duties 
of  the  vocation,  disturbs  this  equilibrium  and  endangers 
the  branch  of  industry;  he  is  a  social  freebooter  whom 
society  has  all  reason  to  suppress.  The  cheap  prices 
which  he  offers  are  a  Greek  gift;  they  are  the  cheap 
prices  of  the  poacher  —  in  another  man's  preserve 
hunting  is  cheap. 

Persecution  of  the  unlicensed  artisan  ("Bonhasen- 
jagen") has  disappeared  along  with  the  constitution  of 
the  guilds  to  which  it  belonged,  but  the  thought  which  was 
expressed  therein,  viz.,  the  inadmissibility  of  competi- 
tion from  people  who  do  not  belong  to  the  business,  is  in 
my  eyes  so  true  that  a  healthy  social  policy  should  never 
lose  sight  of  it.  Competition  within  the  business  regu- 
lates itself,  competition  from  a  point  without  the  business 

-^  In  a  corner  ("Winkel"),  hence  the  term  "Winkelschreiber"  (lit. 
corner  writer  —  obscure  writer,  penny-a-liner)  and  "Winkeladvokat" 
(lit.  corner  lawyer  —  petty  fogger) ;  or  on  the  floor  ("Boden,""B6n"), 
hence  "Bonhase"  (lit.  floor  hare  —  bungler,  interloper). 


§5]    *     SOCIAL  MECHANICS— REWARD  117 

is  like  a  race  in  which  some  one  who  has  not  taken  up 
his  post  together  with  the  rest  at  the  point  of  departure, 
jumps  in  at  a  later  place  to  gain  a  handicap  with  which 
to  wrest  the  prize  from  the  legitimate  competitors  who 
have  to  cover  the  whole  course.^ 

There  is  still  a  third  point  remaining  in  the  considera- 
tion of  the  social  significance  of  the  vocation.  It  is  the 
advantage  which  the  organization  of  industry  gives  to 
society  by  securing  the  necessary  talent. 

As  long  as  it  was  considered  dishonorable  at  Rome  to 
receive  pay  for  intellectual  work,  the  service  of  the 
State  and  the  cultivation  of  science  formed  the  monopoly 
of  the  rich;  talented  persons  without  means  found  the 
access  to  either  practically  closed  (p.  84).  The  cir- 
cumstance that  both  subsequently  became  vocatioyis 
open  to  the  people,  was  a  step  in  advance  not  only  for 
the  individual,  but  also  for  society.  We  like  to  reassure 
ourselves  with  the  proposition  that  genius  overcomes  all 
difficulties,  but  genius  also  needs  bread  in  order  to  live, 
and  if  the  vocation  promises  him  no  bread  because  it 
has  not  yet  developed  into  a  trade  or  business,  he  must 
choose  another  which  will  give  him  this  certainty.  The 
musical  genius  of  the  nineteenth  century  has  his  bread 
assured  him  by  his  music ;  the  musical  genius  of  the  four- 
teenth century  had  to  beg  his  in  the  castles  and  palaces 
of  the  great.  But  begging  is  not  for  every  one,  and 
many  a  one  at  that  time  may  have  preferred  to  be  a 
respectable  shoemaker  or  tailor  to  becoming  a  wandering 

^  A  case  in  point  is  presented  to  us  in  the  question  recently  venti- 
lated in  Austria,  whether  judicial  officials  enjoying  a  pension  should 
be  allowed  to  practice  law.  According  to  my  opinion,  decidedly  not! 
1  can  see  in  it  only  a  disorganization  of  the  legal  profession.  If  the 
pension  which  the  government  allows  to  retired  judicial  officials  is 
too  small,  it  must  be  increased,  —  but  from  the  government's  own 
pocket.  The  above  measure  allows  them  the  increase  at  the  expense 
of  the  lawyers. 


118  THE   CONCEPT   OF   PURPOSE     [Ch.  vii 

musician.  Nowadays  a  genius  is  not  likely  to  be  lost 
to  the  world.  Wherever  he  emerges  he  is  noticed  and 
moved  to  the  place  where  he  finds  his  proper  apprecia- 
tion, and  the  latter  gives  him  at  the  same  time  his  bread. 
A  Catalani,  a  Paganini,  a  Beethoven,  can  never  in  our 
days  become  anything  else  than  what  they  have  become. 
In  the  middle  ages,  if  they  had  disdained  to  become  ballad 
singers  or  fiddle  scrapers,  they  would  have  had  to  take 
up  a  respectable  trade.  In  a  time  which  is  not  prepared 
for  a  genius,  genius  is  a  curse  —  an  eagle  in  a  narrow  cage 
who,  when  he  moves  his  wings  with  boldness  and  force, 
breaks  his  head  against  the  iron  bars.  In  the  present 
time,  however,  which  has  smoothed  the  paths  for  genius 
in  all  domains  of  art  and  science,  the  genius  has  himself 
to  blame  if  he  does  not  become  a  source  of  happiness  to 
himself  and  of  blessing  to  the  world. 

What  has  caused  this  change?  The  assurance  of 
pecuniary  return  by  means  of  a  vocation.  The  vocation 
gives  to  the  competent  person  who  follows  it  the  promise 
of  a  competent  support.  At  the  present  time  Hans  Sachs 
would  not  find  it  necessary  to  make  boots  in  order  to 
write  poetry,  Spinoza  would  not  have  to  grind  lenses  in 
order  to  be  able  to  philosophize.  Art  and  science  have 
advanced  so  far  that  they  can  offer  an  adequate  living 
to  every  one  who  brings  with  him  a  sufhcient  amount  of 
endowment.  The  charity  of  the  great,  upon  which  art 
and  science  had  to  depend  in  former  times,  is  replaced 
by  the  salary  and  the  honorarium  (§  7). 

§  6.  Credit.  Credit  is  the  consummation  of  the 
development  of  the  system  of  exchange.  It  is  demanded 
by  the  purposes  of  commerce,  so  that  it  must  always 
necessarily  appear  when  commerce  reaches  a  certain 
development.  Without  credit  commerce  would  be  the 
most  perfect  and  most  awkward  thing  in  the  world  — 
a  bird  without  wings.     In  order  to  move,  it  must  have 


§6]         SOCIAL  MECHANICS— REWARD  119 

the  wings  of  credit,  and  as  the  bird's  wings  grow  as  soon 
as  it  comes  out  of  the  egg,  so  do  the  wings  of  commerce, 
i.  e.,  credit. 

Political  economists,  whom  it  behooves  to  define  the 
concept  of  credit,  are  not  at  all  agreed  as  to  its  meaning,^^ 
and  this  circumstance  has  determined  me  to  assist  the 
problem  on  my  own  part  from  the  juristic  side,  by  enlist- 
ing the  support  which  the  Roman  law,  from  which  the 
term  credit  has  been  borrowed,  gives  us  also  in  reference 
to  its  content.  And  so  in  the  first  edition  of  this  work  I 
gave  a  lengthy  presentation  of  the  legal  development  of 
the  subject  in  Roman  law.  In  rereading  the  passages  in 
question  I  am  convinced  that  I  overshot  the  mark,  and 
I  have  therefore  subjected  it  to  a  revision  and  abridg- 
ment, confining  myself  to  what  is  essential  and  absolutely 
necessary. 

By  the  term  "credere"  in  the  wider  sense,  the  Roman 
jurists  understand  the  giving  up  of  a  thing  to  another 
with  the  obligation  of  its  subsequent  return;  and  the 
Roman  Praetor  used  in  his  edict  the  expression  "res 
creditse"  as  a  title  comprehending  all  contracts  belong- 
ing to  this  category.^'  To  this  relation  of  establishing  an 
obligation  by  giving  was  attached  linguistically  as  well 
as  historically  the  term  and  the  concept  "creditor,"  for 
that  was  originally  the  only  mode  of  establishing  the 
obligation,  as  we  shall  prove  later  (Chapter  VIII,  §  5). 

"Creditor"   was  the  one  who  had  given  something, 

*'  A  summary  of  the  various  opinions  is  given  by  Knies,  "Der 
Kredit,  Erste  Halfte"  (Berlin,  1876).  I  regard  the  view  of  the  author 
as  incorrect,  and  it  is  for  this  reason  especially  that  I  decided  to 
devote  more  space  to  an  analysis  of  the  idea  of  credit  than  I  should 
otherwise  have  done. 

"  D.  12.  1.  1,  "  .  .  .  credendi  generalis  appellatio  est,  ideo  sub  hoc 
titulo  Praetor  et  de  commodato  et  de  pignore  edixit,  nam  cuicumquc 
rei  adsentiamur  alienam  fidem  secuti  mox  recepturi  quid  ex  hoc  con- 
tractu, credere  dicimur." 


120  THE   CONCEPT  OF   PURPOSE     [Ch.  Vll 

and  "debitor"  the  one  who  had  received  something 
("creduere,"  "credere"  from  "dare";  "debere"  from 
"habere"). 

But  the  development  of  the  Roman  obligation  gave 
a  wider  content  to  the  thing  itself  and  correspondingly 
a  wider  meaning  to  the  expression  "creditor."  In  the 
new  law  ev^ery  obligee  is  called  "creditor"  even  if  he 
gave  nothing,^  and  every  obligor  is  called  "debitor" 
even  if  he  received  nothing;  the  mere  contract,  con- 
cluded with  legally  binding  intention,  is  sufficient  to 
make  the  parties  "debitor"  and  "creditor"  respectively. 

In  this  later  stage  of  the  development  of  obligation, 
therefore,  the  "res  creditae"  form  only  a  particular, 
though  a  widely  comprehensive  category  of  obligatory 
contract.  This  again  is  divided  into  two  classes  accord- 
ing as  the  giving  up  of  the  thing  transfers  the  thing 
merely  de  facto  (possession)  or  de  jure  (ownership) ;  in 
the  first  case,  with  the  obligation  of  returning  the  same 
thing,  in  the  second,  of  returning  a  similar  thing  {specific 
and  generic  determination  of  the  object  of  return;  in 
short  "species"  and  "genus"). 

To  this  contrast  there  attaches  a  practically  very 
important  and  influential  difference  for  the  creditor. 
In  the  first  case  where  he  retains  the  ownership,  and  in 
most  cases  also  the  juristic  possession,  he  is  thereby 
much  more  effectually  secured  than  he  is  in  the  latter, 
where  he  gives  up  both.  In  addition  to  the  action  "in 
personam,"  which  the  law  places  at  his  disposal,  he  can 
institute  actions  to  recover  possession  and  ownership, 
the  latter  even  against  third  persons;  nay,  according  to 
ancient  law,  he  can  even  procure  for  himself  the  thing 
by  force.  His  legal  attitude  to  the  thing  is  exactly  the 
same  as  if  the  thing  were  still  in  his  possession;  this 
"credere"  is  juristically  connected  with  very  little  risk 

28  D.  50.  16.  10-12. 


§ti]         SOCIAL  MECHANICS— REWARD  121 

for  him.  As  examples  of  this  we  have  the  giving  up  of 
a  thing  for  the  purpose  of  care-taking  ("depositum"), 
or  for  temporary  use,  whether  paid  for  or  gratuitous 
(usufructuary   lease,   ordinary   lease,    "commodatum"). 

It  is  quite  different  in  the  second  case.  Here  the 
creditor  loses  entirely  his  remedy  against  the  thing  itself, 
since  he  transferred  to  the  debtor  possession  and  owner- 
ship, and  has  only  his  obligatory  claim  to  fall  back  upon. 
The  debtor  can  transfer  the  thing  which  he  has  just 
received,  immediately  to  another,  and  if  he  is  not  able, 
when  the  time  comes,  to  meet  his  obligation,  it  is  the 
creditor's  loss.  The  insecurity  which  in  this  case 
threatens  the  creditor  presupposes  therefore  on  his  part 
a  much  greater  confidence  in  the  debtor  ("credere"  in 
the  sense  of  belief)  than  in  the  first  instance,  and  it  was 
probably  this  consideration  which  induced  the  Roman 
jurists  to  assume  for  this  category  a  higher  kind  of 
"credere";  which  they  designate  by  the  expressions  "in 
creditum  ire"  or  "abire,"  "in  credito  esse,"  "in  creditum 
dare,  accipere."^^ 

Such  a  "credere,"  which  according  to  the  preceding 
discussion  presupposes  that  the  thing  to  be  returned  is 
only  generically  determined,  is  possible  even  with  regard 
to  commodities  which  differ  individually  too  much  for 
indiscriminate  exchange  or  convertibility.  In  commerce, 
however,  it  is  found  only  in  those  commodities  in  which 
proper  generic  designation  gives  adequate  assurance  that 
exactly  the  same  value  will  be  returned  as  that  which 
has  been  given.     This  is  the  basis  of  the  juristic  concept 

»D.  12.  1.  2  §  1,  19  §  1;  14.  4.  5  §  18;  16.  1.  19  §  5;  19.  2.  31. 
"Suum  esse"  is  designated,  as  contrasted  with  "in  credito  esse,"  as 
a  sign,  "quod  vindicari  non  possit,"  D.  34.  2.  27  §  2.  "In  credito 
esse"  is  therefore  synonymous  with  the  problem  of  property.  In 
cases  of  the  first  kind  the  creditor  has  the  "suum esse"  remaining  to 
him  and  thereby  the  prosecution  thereof  by  "vindicatio." 


122  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

of  fungible  things  in  contrast  to  non-fungible.  In  the 
former  the  generic  determination  is  the  rule,  in  the 
latter  it  is  a  rare  exception.  This  idea  of  fungibility, 
i.  e.,  of  the  equality  of  value  of  particular  things,  reaches 
its  highest  degree  in  money,  which  the  Romans  designate 
as  "certum"  in  the  highest  sense.  Money  is  therefore, 
quite  apart  from  the  other  reasons  which  lead  to  the  same 
result,  singled  out  by  its  nature  to  represent  the  main 
object  of  "credere"  in  the  above  sense.  All  other  objects 
put  together,  which  are  in  themselves  available  for  this 
purpose,  cannot  bear  the  remotest  comparison  with 
money  in  reference  to  this  mode  of  their  economic  appli- 
cation. In  this  form  "creditum"  attains  its  greatest 
importance  for  commerce,  and  the  older  Roman  law 
distinguished  it  from  the  others  by  special  rules.  To  get 
our  modern  concept  of  credit  we  must  start  from  this 
form. 

Money  alone  is  the  object  of  credit  in  our  modern 
sense.  The  shopkeeper  who  gives  goods  on  credit  dots 
not  credit  the  goods  —  that  would  mean  that  he  wanted 
to  get  them  back  —  he  credits  the  price. 

But  not  in  all  cases  where  money  is  handed  over  with 
the  condition  of  its  subsequent  return  do  we  speak  of 
giving  credit.  When  a  man  prior  to  his  departure 
deposits  his  available  funds  with  a  banker  in  such  a 
manner  that  not  the  coins  ("depositum  regulare")  but 
the  amount  should  be  returned  to  him  in  the  future 
(so-called  "depositum  irregulare"),  he  undertakes,  it  is 
true,  an  "in  creditum  abire"  in  the  Roman  sense,  and  he 
puts  himself  legally  in  exactly  the  same  position  as  if  he 
had  given  him  the  money  as  a  loan.  But  this  case  must 
not  be  brought  under  the  point  of  view  of  credit  in  the 
commercial  sense,  and  Roman  jurists,  too,  distinguished  it 
from  the  case  of  loan.  The  consideration  which  led 
them  to  do  this  was  the  difference  of  motive  in  the  two 


§0]     '    SOCIAL  MECHANICS— REWARD  123 

cases.  The  depositor  gives  the  money  for  his  own  sake, 
the  lender  for  the  sake  of  the  other.  In  both  cases,  it  is 
true,  the  receiver  can  dispose  of  it  for  his  own  purposes, 
but  in  the  one  case  it  is  only  the  effect  of  the  handing 
over,  in  the  other  it  is  the  purpose  of  it.  The  same 
relation  exists  in  the  case  where  one  hands  over  to  his 
agent  the  money  required  to  carry  out  some  business  or  to 
defray  expenses.  He  transfers  the  ownership  to  him, 
and  relies  upon  him  to  apply  the  money  in  accordance 
with  his  orders.  But  this,  too,  is  not  giving  credit;  the 
latter  presupposes  that  the  transaction  is  in  the  interest 
of  the  receiver. 

The  crediting  of  money  in  the  interest  of  the  receiver 
may  take  place  in  two  ways :  in  the  form  of  an  inde- 
pendent contract  by  the  handing  over  of  money,  i.  e.,  a 
loan,  and  on  the  occasion  of  another  contract  by  crediting 
the  sum  of  money  which  he  owes  as  a  result  of  it.  This 
may  take  place  immediately  on  conclusion  of  the  con- 
tract or,  by  granting  an  extension  of  the  time  of  pay- 
ment, not  till  later.  The  most  frequent  occasion  for 
this  is  found  in  the  conclusion  of  a  contract  of  sale.  If 
the  credit  of  the  selling  price  is  made  a  condition,  we 
speak  of  a  purchase  on  credit,  or  time.  This  is  just  the 
case  of  which  we  think  in  the  first  place  when,  in  every- 
day life,  we  speak  of  credit  and  trust.  Under  this  form 
comes  the  credit  which  the  shopkeeper  allows  to  his  cus- 
tomers, and  the  credit  which  the  merchant  needs  for  his 
operations.  If  he  needs  a  loan  of  money  it  shows  that 
he  has  not  sufficient  credit  in  the  business  world;  for  the 
right  kind  of  business  man  credit  should  take  the  place 
of  loans. 

Now  Roman  law  offers  a  conception  for  this  form  of 
credit,  which  I  wish  to  communicate  to  the  reader  and 
apply  for  our  purposes.  This  indeed  is  my  sole  reason 
for  inserting  here  the  entire  discussion  concerning  Roman 


124  THE   CONCEPT  OF   PURPOSE     [Ch.  Vli 

law.  It  may  be  expressed  briefly  in  the  words  that  every 
case  of  credit  contains  an  accessory  loan  undertaken  in 
connection  with  the  principal  transaction. 

If  a  buyer  has  not  the  money  to  pay  the  purchase 
price,  he  must  find  some  one  who  will  lend  him  the 
money  —  a  loan  must  make  the  contract  of  sale  possible. 
Now  the  seller  can  give  him  the  loan  just  as  well  as  any- 
body else,^"  and  he  does  this  when  he  trusts  him  with  the 
price.  He  does  it  not  out  of  benevolence,  but  in  his 
own  interest,  in  order  to  make  possible  the  sale  at  the 
price  demanded  by  him.  If  he  found  a  buyer  who  would 
take  the  thing  for  cash  at  the  same  price,  he  would 
not  give  the  credit;  in  business  no  one  gives  credit  who 
does  not  profit  thereby.  Even  in  the  case  where  the 
seller  does  not  stipulate  interest  on  the  price,  and  receives 
therefore  no  interest  as  a  matter  of  form,  he  gets  it  as  a 
matter  of  fact.  For  it  is  in  the  price;  and  the  merchant 
who  sells  "on  time,"  allows  therefore  quite  consistently  to 
the  buyer  who  does  not  wish  to  avail  himself  of  it,  a 
reduction  for  cash  (deduction,  discount). 

The  juristic  process  of  crediting  the  purchase  price 
must  therefore  be  thought  of  in  this  way,  viz.,  that  the 
seller  in  the  capacity  of  lender  turns  over  the  purchase 
money  to  himself  in  his  capacity  as  seller,^^  and  the  price 
is  thus  paid. 

^  A  counterpart  to  this  is  found  in  D.  19.  2.  15  §  6,  where  the  pas- 
senger advances  the  fare  to  the  boatman  before  the  termination  of 
the  voyage  in  the  form  of  a  loan  ("vectura,  quam  pro  mutuo  ac- 
ceperat"),  an  accessory  loan,  which  serves  subsequently,  after  the 
termination  of  the  voyage,  as  a  payment  of  the  fare.  The  recipient 
pays  it  to  himself  in  his  capacity  of  sailor. 

^  Juristic  manipulations  of  this  kind  are  not  rare  among  the  Roman 
jurists.  [So,  for  example,  the  guardian  in  his  capacity  as  debtor  of 
his  ward  must  pay  to  himself  in  his  capacity  as  the  latter's  repre- 
sentative, i.  e.,  he  must  enter  it  on  the  ledger  as  paid,  D.  26. 7.  9  §  5. 
Another  example  in  D.  12.1.  15].  For  the  technique  of  the  law  they 
cannot  by  any  means  be  dispensed  with. 


§6]         SOCIAL  MECHANICS— REWARD  125 

In  order  that  the  process  here  assumed  should  find 
its  correct  juristic  expression,  there  would  be  need  of  a 
special  juristic  transaction  for  the  purpose  of  changing 
the  purchase  debt  into  a  loan  debt,  and  we  should  know 
very  little  of  the  old  Roman  law  if  we  could  not  main- 
tain with  the  greatest  assurance  that  it  has  given  the 
transaction  this  form.  The  solemn  transfer  of  owner- 
ship ("mancipatio")  offered  no  opportunity  for  this. 
Credit  had  therefore  to  be  brought  either  into  the 
form  of  loan  ("nexum")  corresponding  to  our  promis- 
sory note,  or  into  the  form  of  a  literal  contract,'^  or 
a  verbal  contract .^^  After  the  formless  contract  of  sale 
had  become  actionable,  its  binding  force  was  extended 
also  to  the  subsidiary  agreement  whereby  the  purchase 
price  was  credited.  The  negotiation  of  the  credit,  though 
a  distinct  transaction,  viz.,  the  subsidiary  loan,  thus  be- 
came superfluous.^*  Procedurally  this  found  its  expres- 
sion in  the  fact  that  a  credited  selling  price  was  sued 
for  under  the  "actio  venditi."  The  old  conception  of  the 
purchase  price  as  a  loan  to  the  buyer  is  still  traceable  in 
the  rule  that  he  has  to  pay  interest  on  it  from  the  mo- 
ment of  the  delivery  of  the  object. 

The  foregoing  exposition  has  had  for  its  object  to  make 
clear  the  juristic  form  of  credit,  as  it  is  found  expressed 
in  Roman  law,  in  order  by  this  means  to  prepare  for  the 
following  discussion,  which  is  concerned  with  its  social- 
economic  significance. 

'^  An  example  in  the  celebrated  case  of  fraud  inCicero,  "De  Offi- 
ciis,"  III,  14:  "nomina  facit,  negotium  conficit." 

^  That  credit  assumes  thereby  the  form  of  a  loan  is  exprecsly 
recognized  in  D.  14.  6.  3  §  3.  "Si  in  creditum  abii  ...  ex  causa 
emptionis  .  .  .  et  stipulatus  sim,  licet  coejjerit  esse  pecunia  mutua." 

^*  The  possibility,  however,  of  changing  the  purchase  debt  after- 
wards into  a  loan  by  means  of  a  simple  contract  still  remained,  D.  12. 
1.  15. 


126  THE   CONCEPT   OF   PURPOSE     [Ch.  vii 

We  start  from  the  proposition  which  served  to  intro- 
duce the  subject  of  credit  above  (p.  118),  viz.,  that  with- 
out credit  commerce  would  be  the  most  imperfect  and 
most  unmanageable  thing  in  the  world.  The  purpose  of 
commerce  demands  credit  so  greatly  that  its  necessity 
will  appear  everywhere  with  compelling  force. 

The  purpose  of  commerce  consists  in  the  satisfaction 
of  human  wants.  The  form  in  which  this  satisfaction  is 
carried  out  is  the  contract  of  exchange  in  the  widest 
sense,  viz.,  something  done  or  given  for  something  else. 
Therefore,  since  money  has  become  the  normal  form  of 
equivalent  for  all  things  desired,  commerce  means  the 
procurement,  by  means  of  money,  of  something  done  or 
given . 

But  suppose  the  person  in  want  of  something  has  no 
money.  In  this  case  if  he  is  not  in  a  position  to  procure 
the  satisfaction  of  his  need  by  the  sale  of  his  belongings 
—  and  that  too  perhaps  only  with  the  greatest  loss — 
he  would  not  be  able  to  satisfy  his  need,  and  he  would  be 
denied  bread,  upon  which  the  lives  of  his  children,  as 
well  as  his  own  life,  are  dependent.  Even  if  he  had  the 
most  certain  prospect  of  getting  the  money  soon,  he 
becomes  temporarily  indigent. 

This  gap  which  the  system  of  exchange  in  the  above 
form  leaves  open  is  filled  by  credit.  Credit  assists  the 
need  of  the  present  by  applying  to  the  future. 

The  need  of  the  present  may  be  helped  in  the  first 
place  by  a  friend.  But  friendship  and  benevolence  do 
not  constitute  a  factor  of  commerce  (p.  83).  The  lever 
upon  which  it  counts  and  must  count  is  egoism,  which  has 
the  advantage  that  it  never  fails. 

The  loan  of  a  friend  is  gratuitous,  that  of  an  egoist  is 
paid;  he  requires  interest.  In  this  way  the  loan  subordi- 
nates itself  to  the  principle  of  the  system  of  exchange, 
viz.,  performance  for  a  consideration.      Interest  is  the 


§6]         SOCIAL  MECHANICS— -REWARD  127 

equivalent  for  the  temporary  handing  over  of  capital. 
Time  is  money,  in  reference  to  the  money's,  as  well  as 
the  man's  power  of  acquisition. 

But  even  with  this  condition  attached,  the  person  in 
need  receives  the  money  only  when  the  lender  is  confi- 
dent that  he  will  get  it  back  later.  The  economic 
"credere"  of  the  money  has  as  its  presupposition  the 
moral  "credere"  in  the  person.  Credit  is  belief  in  the 
domain  of  economics;  the  believers  are  the  creditors. 

The  lender  as  the  possessor  of  funds,  which  he  puts  at 
the  disposition  of  the  borrower,  we  call  capitalist,  and  the 
funds,  capital.^^  If  the  present  has  more  than  it  needs,  it 
lays  by,  under  good  management,  a  surplus  for  the 
future  - —  it  saves.  When  these  savings  become  more 
than  is  generally  used  up  by  normal  individual  need, 
we  call  them  capital.  Capital  is  the  surplus  of  economy 
which  has  withstood  victoriously  the  attack  of  constant 
need.  It  follows  from  this  that  the  concept  is  relative. 
A  sum  of  three  hundred  marks,  or  even  of  thirty,  may  be 
capital  for  a  poor  man,  i.  e.,  a  saving  perfectly  secure 
from  these  attacks.  For  a  rich  man,  ten  or  a  hundred 
times  this  sum  may  not  yet  be  capital,  for  capital  begins 
where  expenditure  need  no  longer  claim  all  that  is 
available. 

Now  as  trade  in  merchandise  brings  the  object  from 
the  place  where  it  does  not  fulfil  its  function  of  serving 

'*The  designation  "caput"  for  the  sum  lent  (in  the  sense  of  the 
principal  thing  as  opposed  to  the  interest,  the  secondary  thing) 
dates  from  the  time  of  the  later  Roman  Empire;  the  earlier  term 
was  "sors."  Like  the  expression  "caput,"  so  the  modern  terms, 
capital,  capitalist,  involve  the  economic  exploitation  of  money  by 
means  of  interest.  When  we  are  not  thinking  of  the  latter,  we  speak 
of  money.  The  function  of  capital  is  to  bear  interest.  A  capitalist 
in  the  eminent  sense  of  the  term  is  the  man  who  can  live  on  his 
interest  (income  ["Renten"],  hence  "Rentier"  [a  person  living  on 
his  income]). 


128  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

human  need  to  the  place  where  it  does,  so  trade  in  money 
does  the  same  with  regard  to  capital.  Interest  is  the 
lever  in  this  process.  It  draws  money  from  the  place 
where  it  has  accumulated  without  finding  economic 
employment  to  the  place  where  it  is  wanting  and  needed. 
Superfluity  in  one  place  and  want  in  the  other  compensate 
each  other ;  what  the  one  has  too  much  of  comes  in  handy 
to  the  person  who  has  too  little.  The  economy  of  the 
past,  present  and  future  is  equalized  and  divided  be- 
tween two  persons.  The  past  falls  to  the  capitalist; 
for  he  had  to  save  to  be  able  to  lend;  the  present  and 
future  fall  to  him  who  borrows  the  money;  the  present 
in  the  form  of  a  deficit,  the  future  with  the  task  of  cover- 
ing this  deficit  by  an  eventual  surplus.  In  the  economic 
world  we  find  a  similar  phenomenon  of  equalization  to 
that  represented  in  the  cosmic  world  by  the  equalization 
of  heat  over  the  various  seasons,  regions,  land  and  sea. 

But  the  loan  of  the  capitalist  who  lends  us  money, 
whether  he  gives  it  himself  or  opens  a  credit  for  us  with 
another,  is  not  the  only  means  by  which  we  can  relieve 
our  need.  With  this  is  associated  the  second  species  of 
credit,  mentioned  above  (p.  123),  in  connection  with 
another  contract,  viz.,  the  giving  credit  for  the  sum  of 
money  in  contradistinction  to  giving  cash.  The  prin- 
cipal occasion  for  this  is  offered  by  the  contract  of  sale, 
and  in  \aew  of  this  we  will  designate  this  species  as  mer- 
chandise credit  in  contradistinction  to  the  money  credit  of 
the  loan,  following  in  this  the  usage  of  ordinary  life,  which 
speaks  of  "taking  goods  on  credit."  That  juristically 
it  is  not  the  goods  but  the  purchase  price  which  is  given 
on  credit,  has  been  remarked  above  (p.  122). 

In  the  legal  sense  the  price  is  credited  only  when  there 
is  an  agreement  to  that  effect.  If  this  is  not  the  case, 
then  the  purchase,  even  if  the  seller  allows  the  goods  to 
be  taken  away  without  receiving  payment,  is,  legally 


§6]         SOCIAL  MECHANICS— REWARD  129 

speaking,  a  purchase  for  cash.  The  giving  credit  is  in 
this  case  purely  a  de  facto  arrangement,  a  contractual 
"precarium,"  to  which  the  seller  can  put  an  end  at  any 
moment,  and  which  does  not  therefore  involve,  accord- 
ing to  the  Roman  law,  the  ownership  of  the  object  pur- 
chased. The  latter  presupposes  payment  or  contractual 
credit  of  the  price.  But  this  distinction  is  without 
particular  significance  for  the  economic  function  of  credit 
in  our  present  business  life,  which  is  the  only  thing  to  be 
taken  into  account  in  the  following  investigation. 
Actually,  pure  credit  de  facto,  where  the  seller  can,  if  he 
chooses,  demand  the  price  of  the  goods  immediately 
after  delivery,  or  send  a  bill  and  insist  on  its  payment, 
but  does  not  do  so,  plays  a  scarcely  less  important  role 
than  credit  in  the  meaning  of  the  law. 

Merchandise  credit  in  the  wider  sense  is  distinguished 
from  money  credit  by  the  fact  that  the  latter  is  de- 
manded by  the  nature  of  the  business  itself  —  a  loan 
without  credit  is  a  contradiction  in  terms  —  whereas  in 
purchase  it  is  an  accidental  addition  which  may  be  want- 
ing. The  contract  of  sale  began  as  a  sale  for  cash,  and 
it  is  only  in  the  course  of  development  that  sale  on  credit 
became  associated  with  it.  The  idea  of  credit  first  saw 
the  light  of  day  in  the  loan  which  is  exclusively  based 
upon  it,  and  it  was  only  later  on  transferred  from  it  to 
the  contract  of  sale.  Even  without  the  historical  evi- 
dence which  the  Roman  law  presents  in  support  of  this 
proposition  (p.  125),  we  should  find  ourselves  driven  to  it 
from  general  considerations.  The  born  lender  is  the  capi- 
talist, who  has  amassed  money  by  his  savings,  and  his 
interest  is  to  find  another  with  whom  he  can  turn  it  into 
profit  in  the  form  of  interest.  The  lender  tries  to  get  rid 
of  his  money,  whereas  the  seller  tries  to  get  it,  and  fre- 
quently he  is  so  far  from  being  at  the  same  time  a 
capitalist  that  on  the  contrary  the  want  of  money  is 
not  seldom  his  only  motive  for  selling. 


130  THE   CONCEPT  OF   PURPOSE     [Ch.  Vll 

What  causes  him  to  credit  the  price?  Evidently 
nothing  but  his  own  interest.  If  he  can  sell  just  as 
advantageously  for  cash  as  on  credit,  he  allows  no 
credit.  He  allows  it  only  either  to  make  possible  a  sale 
which  would  otherwise  not  have  taken  place  at  all,  or  to 
get  a  higher  price.  In  either  case  the  contract  of  sale 
must  pay  for  the  credit  which  he  allows. 

In  giving  credit  the  seller  undertakes  economically 
the  role  of  the  lender,  of  the  capitalist.  He  saves  the 
buyer  the  necessity  of  procuring  the  money  he  needs 
from  the  capitalist,  w^ho  is  the  special  man  for  the  pur- 
pose, and  does  himself  what  originally  the  latter  alone 
did,  viz.,  to  put  at  his  disposal  the  money  which  he 
needs,  and  which  is  required  for  the  conclusion  of  the 
purchase.  That  is,  he  lends  it  to  him,  not  as  the  other, 
in  the  form  of  an  independent  loan,  but  as  an  accessory 
loan,  which  is  inserted  as  a  constituent  element  in  the 
contract.  Whether  it  assumes  the  juristic  form  of  a 
loan,  as  was  the  case  in  old  Roman  business,  and  as 
happens  with  us  in  the  business  of  merchants  by  the 
drawing  of  a  bill  of  exchange,  is  indifferent  so  far  as  the 
economic  view  of  the  transaction  is  concerned.  The 
seller  does  actually  exercise  the  function  of  a  lender. 
The  interest,  without  which  the  capitalist  does  not  make 
the  loan,  is  found  by  the  seller,  in  the  absence  of  express 
stipulation,  in  the  amount  of  the  price,  which  is  set 
higher,  in  view  of  the  credit  allowed,  than  it  would  be  in 
a  sale  for  cash. 

Looked  at  in  this  way,  money  credit  and  merchandise 
credit  come  under  the  same  point  of  view,  viz.,  the  loan. 
Money  credit  is  an  independent,  open  loan ;  merchandise 
credit  is  an  accessory,  latent  loan.  The  practical  sig- 
nificance of  the  transference  of  credit  from  loan  to  con- 
tract of  sale  cannot  be  estimated  too  highly;  it 
belongs  to  the  number  of  those  business  factors  oi  prime 


5  61         SOCIAL  MECHANICS  — REWARD  131 

importance  which  have  given  an  exceptional  form  to  the 
entire  system  of  commerce.  By  admitting  credit  into 
the  business  of  merchandise,  exchange  has  received  that 
complete  form  of  which  it  is  capable,  beyond  which  it  is 
capable  of  no  further  progress. 

In  order  to  appreciate  properly  the  significance  which 
merchandise  credit  has  for  commerce,  we  must  distin- 
guish, I  think,  two  applications  of  it.  The  one  belongs 
to  private  (not  mercantile)  exchange,  the  other  to  mer- 
cantile transactions;  credit  which  the  private  man  (non- 
merchant)  takes,  and  credit  which  the  merchant  takes. 
The  former  I  shall  call  private  credit,  the  latter  mercantile 
(or  trade)  credit. 

Contracts  of  sale  concerning  movable  things  in  which 
private  persons  are  on  both  sides  form  the  exception 
in  business  intercourse;  as  a  rule  the  other  party  is  a 
merchant  (in  the  widest  sense  of  the  word) ,  who  makes  a 
business  of  buying  and  selling;  a  shopkeeper,  a  dealer  in 
old  clothes,  an  innkeeper,  a  bookseller,  an  artisan,  a 
banker,  etc.  In  comparison  with  the  enormous  number 
of  contracts  of  sale  which  are  daily  carried  out  in  this 
form,  those  in  which  one  private  man  sells  to  the  other 
vanish  almost  into  nothing.  In  the  life  of  many  persons 
years,  even  a  whole  lifetime,  may  pass  without  the  occur- 
rence of  such  a  case,  and  when  it  does  happen  once,  the 
sale  is  as  a  rule  for  cash.  Only  the  breaking  up  of  a 
household  in  case  of  death,  of  change  of  place,  etc., 
brings  the  private  man  into  the  position  of  appearing 
as  a  seller  of  movable  property,  and  the  sale  takes  place 
as  a  rule  in  the  public  form  of  an  auction  sale.  On  such 
an  occasion  the  question  of  credit  confronts  him  likewise. 
It  is  an  experience  with  which  the  Romans  already  were 
familiar  that  one  can  get  higher  prices  in  auction  sales 
on  credit  than  for  cash,  and  this  was  the  basis  in  Rome 
of    the    organization    of   credit   in   auction   sales.      It 


132  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

consisted  in  assigning  the  giving  of  credit  to  the  "argen- 
tarius,"  the  Roman  auctioneer,  who  was,  by  reason  of 
his  personal  knowledge,  the  proper  man  to  judge  the  sol- 
vency of  the  particular  bidder,  and  who  undertook  the 
giving  of  credit  on  his  own  risk  for  a  certain  percentage 
of  the  entire  income,  exactly  like  the  modern  auctioneer 
who  undertakes  the  "del  credere"  on  a  certain  com- 
mission, and  after  deducting  this  pays  the  owner  the 
entire  amount  at  once  in  cash .  The  private  person  wishes 
as  far  as  possible  to  have  nothing  to  do  with  the  giving 
of  credit,  and  leaves  it  to  the  business  man. 

In  the  sale  of  immovable  property,  the  case  is  quite 
different  from  what  it  is  in  the  sale  of  movable.  Here 
credit  is  the  rule.  A  portion  of  the  price  is  paid;  the 
other  portion,  as  a  rule  the  larger,  remains  on  the  estate, 
bearing  interest  and  secured  by  reservation  of  the  title 
or  by  mortgage.  The  seller  advances  the  buyer  the  sum, 
which  the  latter  would  otherwise  have  to  borrow  from 
some  one  else,  and  assumes  the  economic  function  of  the 
lender.  This  case  of  credit  comes  under  the  point  of 
view  of  real  credit  in  contradistinction  to  personal  credit. 
It  has  nothing  in  it  of  credit  in  the  sense  of  trust.  In 
demanding  real  security  the  seller  shows  that  he  has  no 
trust  in  the  buyer;  he  lends  him  indeed  ("credere"  in 
the  economic  sense),  but  he  does  not  trust  him  ("credere" 
in  the  moral  sense). 

We,  therefore,  may  say  that  in  a  private  sale  credit  in 
this  latter  sense  has  a  very  subordinate  role;  in  a  thou- 
sand cases  of  credit  given  by  the  merchant  there  is  per- 
haps not  one  given  by  the  private  person.  The  private 
person  makes  sure  of  his  object,  and  he  can  and  must  do 
so,  for  he  does  not  make  a  living  from  the  sale  as  the 
merchant  does,  who  in  order  to  increase  his  sales  is  obliged 
to  call  in  the  aid  of  this  artificial  means  of  inducement, 
and  with  whom  the  loss  which  he  suffers  in  a  particular 


§6]         SOCIAL  MECHANICS  — REWARD  133 

case  is  distributed  over  a  large  number  of  cases  and 
thereby  neutralized.  As  his  business  makes  it  necessary 
for  him  to  give  credit,  the  advantages  of  giving  credit 
pay  for  its  risks  —  the  merchant  insures  himself. 

We  must  distinguish  between  the  private  man  and 
the  merchant  in  reference  to  the  persons  to  whom  credit 
is  given.  As  regards  the  creditor  himself  there  is  no 
essential  difference,  to  be  sure;  he  tries  in  both  cases 
to  make  possible  by  means  of  it  the  closing  of  a  deal 
which  would  otherwise  perhaps  not  have  taken  place, 
and  he  risks  in  the  one  case  as  much  as  in  the  other, 
except  that  the  risk  assumes  greater  dimensions  with  the 
merchant.  But  in  reference  to  the  other  party,  credit 
exercises  an  essentially  different  function  in  the  two  cases, 
which  I  think  I  can  fittingly  express  by  the  terms  con- 
sumers' credit  and  trade  credit.  The  former  finds  its 
motive  and  its  measure  in  the  immediate  need  of  the 
thing  which  is  given  on  credit.  The  condition  of  a  lack 
of  money  to  cover  the  cost  is  here  the  exception,  not  the 
rule.  The  management  of  private  affairs  should  be  so 
arranged,  and  is  as  a  rule  so  arranged,  that  there  is  no 
need  of  credit  with  the  shopkeeper,  baker,  butcher,  etc. 
The  respectable  housekeeper  makes  no  debts,  does  not 
live  on  credit,  just  as  he  is  not  in  the  habit  of  giving 
credit  himself.  Cash  payment  is  the  principle  of  a  well 
ordered  household,  the  necessity  of  credit  is  a  proof  of 
disturbance  —  whether  due  to  improvidence  or  to  mis- 
fortune —  of  the  normal  relation. 

The  case  is  quite  different  in  trade  credit,  where  it  is 
not  a  question  of  obtaining  the  thing  for  the  purpose 
of  satisfying  one's  own  want,  but  for  the  purpose  of 
selling  it.  The  respectable  merchant  may  receive  credit 
without  losing  his  standing,  and  he  must  do  so;  he  would 
not  be  a  merchant  if  he  did  not  utilize  it  for  his  opera- 
tions.    The  sale  of  his  goods  must  furnish  him  the  means 


134  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

with  which  he  covers  the  purchase;  he  must  buy  more 
than  he  can  pay  for  at  once.  Credit  constitutes  an 
essential  and  absolutely  indispensable  factor  and  lever 
of  his  business  management;  the  measure  in  which  he 
enjoys  it  is  the  criterion  of  his  competence  and  impor- 
tance in  the  mercantile  world.  The  distinction  between 
the  normal  form  of  private  management  and  business 
management  may  be  expressed  in  two  words,  cash  pay- 
ment and  credit. 

As  a  matter  of  fact,  however,  the  use  of  credit  even  in 
private  affairs  has  increased  in  a  manner  which  hardly 
bears  out  the  last  proposition.  It  is  not  limited  by  any 
means  to  the  compelling  occasion  which  first  called  it 
into  life,  viz.,  the  want  of  cash  money —  I  might  call  it 
in  this  form  emergency  credit — but  it  is  given  and  taken 
where  this  condition  is  not  at  all  present.  There  is 
many  a  place  and  many  a  business  where  it  is  forced  upon 
the  customer  against  his  will ;  cash  payment  is  refused 
as  if  it  were  dishonorable  for  the  seller  to  accept  it ;  a 
bill  can  scarcely  be  gotten  from  him  before  the  time  when 
he  is  in  the  habit  of  presenting  it.  In  place  of  immediate 
payment  or  immediate  presentation  of  the  bill,  the  cus- 
tom has  arisen  of  presenting  it  periodically  at  certain 
dates.  Wherein  does  the  motive  of  this  consist?  In 
the  first  edition  of  this  work  I  placed  it  in  the  facilitation 
of  the  mode  of  payment  which  is  effected  thereby  for 
both  parties  —  the  burdensome  and  annoying  small, 
daily  payments  at  the  grocer's,  baker's,  butcher's,  are 
replaced  by  periodically  recurrent  larger  ones  —  and 
designated  it  accordingly  as  the  credit  of  convenience.  I 
am  now  convinced  that  this  conception  does  not  wholly 
cover  the  object  which  is  aimed  at  in  the  matter.  The 
credit  of  convenience  is  at  the  same  time  calculated  to 
cover  the  emergency  credit;  it  is  meant  to  save  cus- 
tomers to  whom  the  latter  would  apply  the  embarrass- 


8  6]         SOCIAL  MECHANICS  — REWARD  135 

ment  of  asking  for  it,  which  would  perhaps  keep  them 
from  buying  altogether.  In  order  that  it  may  be  given 
naturally  to  those  for  whom  it  is  specially  intended,  it  is 
given  to  all.  The  arrangement  must  be  general  in  order 
to  offer  its  service  to  those  for  whom  it  is  intended. 

Such  is  credit  in  the  domain  of  private  life.  But  the 
full  development  of  its  force  it  attains  only  in  the  domain 
of  mercantile  life.  A  private  person  who  has  an  income 
of  a  thousand  a  year  will  not  under  proper  management 
take  more  than  a  thousand  a  year  on  credit,  but  even  a 
responsible  merchant  who  owns  ten  thousand  often  does 
business  of  a  hundred  thousand  and  more.  The  func- 
tion which  mercantile  credit  exercises  does  not  consist, 
as  it  does  in  private  credit,  in  making  harmless  the 
momentary  inequality  between  the  need  and  the  means, 
but  in  affording  the  business  man  the  possibility  of  using 
another's  capital  for  his  business  in  order  to  be  able  to 
speculate  with  it.  Hence  we  may  designate  this  form 
of  credit  as  credit  of  speculation.  The  goods  which  are 
delivered  to  him  without  payment  constitute  for  him  a 
sort  of  loan  of  capital  (money  value  instead  of  money), 
the  credit  which  he  receives  is  meant  to  strengthen  his 
resources;  it  is  given  in  view  of  the  success  which  it 
helps  to  bring  about. 

But  the  advantages  which  credit  offers  to  the  mercan- 
tile business  must  be  dearly  paid  for.  Credit  exposes 
the  otherwise  hardy  constitution  of  business  to  a  seri- 
ous danger,  to  periodic  disturbances  and  interruptions 
of  its  normal  functions  of  life.  Credit  is  similar  to 
narcotics.  A  proper  use  tends  to  stimulate  the  powers 
of  man,  to  animate  and  increase  them,  but  when  used 
to  excess  they  produce  instead  of  refreshment,  relaxa- 
tion and  weakness.  The  same  is  true  of  credit  in  trade. 
If  it  is  used  properly,  it  raises  the  powers  of  the 
individual    above    the  ordinary    scale    and    stimulates 


136  THE   CONCEPT  OF   PURPOSE     [Ch.  VII 

commerce,  but  when  used  beyond  measure  its  effect  is 
devastating;  destroying  those  who  take  it  as  well  as 
those  who  give  it.  In  regard  to  spirituous  intoxication, 
our  language  describes  the  condition  of  involuntary 
expiation  decreed  by  nature  for  excess  in  the  use  of  liquors 
by  the  term  "katzenjammer."  In  commerce  it  is  called 
a  "business  crisis";  in  more  recent  times  the  term 
"crash"  also  has  come  into  use.  Crash  is  the  economic 
"katzenjammer"  resulting  from  excessive  use  of  credit  — 
"Schwindel"  (swindle,  vertigo)  plays  a  great  role  in 
both. 

The  cause  of  this  danger  lies  in  the  fact  that  credit 
operates  with  another  man's  capital.  Of  the  sum  x  which 
the  dealer  on  credit  stakes  on  the  card,  only  one-tenth  x 
perhaps  belongs  to  him,  and  the  other  nine-tenths  to  B. 
If  the  undertaking  succeeds,  the  whole  gain  accrues  to 
him;  if  it  fails,  then  the  risk  exceeding  one-tenth  x 
does  not  fall  on  him  but  on  others.  If  the  whole  x  were 
his  own,  he  would  bear  the  entire  risk  himself  and  would 
therefore  be  more  cautious  in  staking  it.  Credit  is  a 
means  of  encouraging  risks- — ^the  less  a  man  has,  the 
more  advantageous  it  is  for  him  to  speculate,  if  he  finds 
people  to  give  him  credit. 

With  credit  in  business  we  have  reached  the  highest 
stage  of  the  system  of  commerce  which  is  based  upon 
economic  reward,  that  term  being  understood  in  the 
widest  sense  as  above  explained  (p.  98).  But  economic 
reward  is  not  the  only  form  in  which  society  applies  the 
concept  of  reward  for  its  purposes;  there  is  still  another 
to  which  we  will  now  pass  on. 

§  7.  Ideal  Reward  and  Its  Combination  with  Economic 
Reward.  Our  language  does  not  limit  the  concept  of 
reward  to  that  form  of  it  alone  which  we  have  been  con- 
sidering till  now,  namely,  money;  for  it  uses  it  also  in  a 
moral  sense  for  every  good  which  falls  to  anyone's  share 


§7]         SOCIAL  MECHANICS— REWARD  137 

as  compensation  for  a  meritorious  act.  For  example,  it 
speaks  of  the  reward  of  virtue,  of  diligence,  etc.  Whether 
this  wider  concept  of  reward  has  any  significance  for 
commerce  will  appear  in  the  sequel;  that  it  has  impor- 
tance for  society,  cannot  be  a  matter  of  doubt.  Reward 
in  this  wider  sense  forms  the  counterpart  of  punishment. 
Society  punishes  him  who  has  wronged  her;  she  rewards 
him  who  deserves  well  at  her  hands. 

The  use  which  society  makes  of  reward  nowadays  is 
far  behind  that  of  punishment;  she  has  taken  in  this 
respect,  in  comparison  with  antiquity,  a  considerable  step 
backward.  In  Rome  reward  and  punishment,  as  the 
two  means  at  the  disposal  of  society  for  the  carrying 
out  of  her  purposes,  were  regarded  by  the  sociologist  as 
fully  equal.  A  Roman  jurist  does  not  hesitate  on  the 
question  of  the  final  purpose  of  the  law  to  put  reward 
on  one  and  the  same  plane  with  punishment .^^  This  is 
highly  significant!  What  has  the  jurist  to  do  with  reward? 
Nowadays,  nothing;  nowadays,  punishment  alone  is  con- 
fided to  him,  a  legal  claim  to  reward  for  distinguished 
and  unusual  merits  belongs  to  no  one.  But  this  very 
thing  reflects  the  enormous  difference  between  the 
Roman  world  and  our  own,  viz.,  that  public  reward  in 
Rome  had  not  as  with  us  a  merely  social  significance, 
but  a  legal  significance.  The  law  of  reward  —  an  idea 
unfamiliar  to  us  —  corresponded  in  Rome  to  the  law  of 
punishment  (criminal  law).  Nay,  it  is  not  saying  too 
much  to  maintain  that  up  to  the  codification  of  the 
criminal  law  at  the  end  of  the  Republic,  the  law  of  reward 
was  more  clearly  defined  than  the  criminal  law.  The 
criminal  law  was  administered  by  the  Roman  people 
with  a  freedom  which  verged  on  arbitrariness.^'  Whether 

**  D.  1.   1.  1   §  1.   ".  .  .  bonos  non  solum  metu  poenarum,  verum 
etiam  praemiorum  quoque  exhortatione  efficere  cupientes." 

'^  See  my  "Geistdes  romischen  Rechts,"  II  §25  (4thed.,  p.  46  ff.)- 


138  THE   CONCEPT  OF   PURPOSE     [Ch.  Vii 

they  should  recognize  a  penalty,  and  which  one,  was 
always  a  matter  of  their  free  choice.  But  whether  t^e 
general  deserved  a  triumph  or  an  ovation,  whether  the 
soldier  had  a  claim  to  the  "corona  muralis,"  "civica," 
"castrensis,"  "navalis"' — the  military  decorations  of  the 
Romans  —  was  a  matter  of  detailed  regulation,  and 
might  even  furnish  a  cause  of  action. ^^  To  the  triumphs 
and  olive  wreaths  of  the  Olympic  games,  to  the  mural 
and  civic  crowns  of  antiquity  correspond,  according  to 
their  character,  our  decorations  of  today;  our  titles  and 
ennoblements.  But  these  are  not  a  matter  of  right,  but 
of  supreme  grace  or  favor,  and  the  notion  that  they 
represent  the  undoubted  proof  of  distinguished  social 
merit  is  nowhere  more  effectually  guarded  against  than 
at  the  source  of  their  bestowal,  because  there  the  opera- 
tive motives,  levers  and  considerations  are  best  known. 
They  can  be  often  compared  with  apples  which  cannot 
be  reached  by  those  who  stand  at  a  distance,  but  fall 
in  the  laps  of  those  who  sit  under  the  tree,  or  who  are 
in  a  position  to  be  able  to  shake  it.  Whether  this  form 
of  the  matter  will  in  course  of  time  give  room  to  another; 
whether  the  same  revolution  will  take  place  in  the 
State's  system  of  reward  as  has  taken  place  in  its  penal 
system,  by  an  advance  from  subjective  choice  to  fixed 
rules  and  law,  which  would  be  no  more  than  a  return 

^  Vol.  Max.  II,  8,  2  "  .  .  .  judicium,  ...  in  quo  de  jure  triuni- 
phandi  .  .  .  actum."  The  whole  eighth  chapter  in  this  writer  treats 
"dejure  triumphandi."  For  an  action  in  claim  of  a  "corona  mura- 
lis," which  is  said  almost  to  have  led  to  a  military  uprising,  see  Livy, 
26,  48.  For  the  "jus  civicae  coronae"  see  Cellius,  VI,  5  §  13.  There 
were  other  rewards  of  a  juristic  nature  which  were  connected  with 
definite  conditions,  for  example,  the  attainment  of  complete  civic 
power  and  of  "patria  potestas"  for  an  "imperfect  citizen"  (Latini 
Juniani,  Ulp.  Ill,  Gaj.  I,  66),  the  "jus  liberorum,"  so  important 
in  connection  with  the  right  of  succession  and  otherwise  —  the  pre- 
mium of  a  fruitful  marriage. 


§7]  SOCIAL  MECHANICS— REWARD  139 

to  the  method  of  antiquity  —  this  I  leave  to  every  one's 
own  opinion;  I  for  my  part  beHeve  in  it.  Whether  it  is 
reward  or  punishment  (the  function  of  both  being 
simply  the  realization  of  the  idea  of  justice)  that  errs, 
i.  e.,  misses  the  right  man  and  finds  the  wrong  one,  is 
equally  incompatible  with  the  idea  of  justice. 

But  it  is  not  the  personal  representative  of  sov- 
ereignty alone  who  rewards  social  merit;  there  is  an 
impersonal  power  besides,  viz.,  public  opinion  and  also 
history,  which  rectify  the  errors  which  the  former  may 
have  committed.  They  have  honors  to  confer  with 
which  the  favors  of  the  ruler  cannot  even  remotely  com- 
pare. For  those  which  he  controls  are  of  an  exceedingly 
evanescent  character;  they  are  buried  with  their  bearer 
— ■  nafve  vanity  hits  the  nail  on  the  head  when  it  fastens 
those  decorations  to  the  cofifin!  But  the  laurel  around 
Dante's  temples  is  ever  green  and  will  never  fade;  one 
leaf  of  it  outweighs  wagon  loads  of  grand  crosses. 

The  species  of  rewaid  which  I  have  considered  just 
now  I  designate  as  ideal  reward.  I  call  it  ideal  in  contra- 
distinction to  material  reward  (money),  which  bears  its 
value  in  itself,  whereas  the  ideal  value  depends  solely 
upon  the  ideas  which  are  associated  with  it.  What  are 
three  horsetails,  a  peacock's  feather,  a  ribbon  in  the 
buttonhole,  for  him  who  does  not  know  what  they 
signify,  and  what  are  they  even  for  him  who  does  know 
but  puts  no  value  upon  such  honors?  External  marks 
of  honor  possess  no  higher  value  for  their  owner  than  he 
himself  puts  upon  them ;  money,  on  the  contrary,  retains 
its  full  value,  its  economic  power,  even  in  the  hands  of 
him  who  values  it  slightly.  It  is  of  the  greatest  inter- 
est to  society  that  ideal  reward  should  stand  in  the 
highest  possible  estimation.  The  higher  the  value  which 
is  put  upon  it,  the  more  effective  is  the  lever  which  society 
therein  possesses  for  the  achievement  of  her  purposes. 


140  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

We  have  defined  commerce  {supra  p.  74)  as  the  sys- 
tem of  the  regulated  and  assured  satisfaction  of  human 
wants.  In  these  wants,  however,  are  counted  not  only 
those  of  the  body,  such  as  eating  and  drinking,  clothing 
and  shelter,  but  for  a  certain  portion  of  the  population 
also  the  ideal  interests  of  art  and  science.  He  who 
satisfies  these  fulfils  thereby  a  purpose  of  commerce;  the 
artist  and  the  scholar  therefore  serve  commerce  no  less 
than  the  farmer,  the  artisan  and  the  merchant.  Art  and 
science,  too,  go  out  on  the  market  and  offer  their  treasures 
for  sale;  the  painter  his  picture,  the  sculptor  his  statue, 
the  composer  his  symphony,  the  scholar  his  manu- 
script. By  this  means,  it  might  seem,  they  place  them- 
selves on  a  line  with  all  others  who  hold  their  products 
or  manufactures  for  sale,  viz.,  the  farmer,  the  manu- 
facturer, the  artisan,  and  tread  the  economic  level  of 
business  life.  They  accept  reward  for  their  work,  con- 
sequently it  is  wages  ("Arbeitslohn"),  and  whatever 
applies  to  the  one  group  applies  to  the  other. 

It  is  by  all  means  necessary  to  free  oneself  from  this 
view.  Not  indeed  because  it  degrades  art  and  science, 
but  because  it  distorts  the  truth  in  such  a  way  as  to 
prevent  one  understanding  the  reality.  The  true  view 
recognizes  two  spheres  of  social  work.  In  the  one,  money 
constitutes  the  only  purpose  and  is  the  lever  of  all 
operations  which  take  place  therein;  in  the  other,  the 
individual  by  his  efforts  has  another  aim  in  view  besides 
money  making.  To  the  second  sphere  belong  art  and 
science,  the  service  of  the  Church  and  the  State.  Lan- 
guage with  its  fine  discrimination  has  correctly  grasped 
the  difference  between  the  two  spheres.  In  the  one  it 
calls  the  reward  "wages"  ("Arbeitslohn),  in  the  second 
it  carefully  avoids  using  this  expression  and  replaces  it 
by  other  terms.  The  writer,  composer,  physician  re- 
ceives no  "pay"  ("Lohn")  or  "wages"  ("Arbeitslohn"), 


§7]         SOCIAL  MECHANICS— REWARD  141 

but  a  "honorarium,"  the  official  receives  "salary" 
["Gehalt,"  "Besoldung"]  (in  case  of  extraordinary  com- 
pensation, "remuneration"),  the  lawyer,  "fees"  ("Deser- 
viten").  This  is  no  mere  politeness  of  expression,  meant 
to  conceal  the  fact  that  the  receiver  works  for  money,  nor 
is  the  difference  in  designation  merely  aimed  at  the  con- 
trast of  physical  and  intellectual  work.  According  to  my 
mind,  it  is  meant  to  express  the  relation  of  the  reward  to 
the  work.  Reward  constitutes  for  the  ordinary  workman 
the  sole  motive  of  his  work,  whereas  the  physician,  lawyer, 
artist,  scholar,  teacher,  preacher,  government  official, 
unless  indeed  he  is  a  mere  workman,  seeks  the  motive  of 
his  activity  and  his  satisfaction  by  no  means  exclusively 
in  the  money,  but  also  in  something  superior ;  if  the  usage 
of  language  had  its  basis  in  mere  etiquette,  science  would 
have  every  reason  to  free  itself  from  it,  for  it  would  in 
that  case  rest  only  upon  an  ancient  prejudice,  which  is 
quite  obsolete  nowadays,  that  there  is  something  dis- 
honorable in  accepting  pay  for  work  (p.  81).  Where 
the  pay  is  purely  return  for  labor,  an  avoidance  of  this 
expression  on  account  of  the  social  position  of  the  receiver 
would  be  just  as  senseless  as  if  one  wanted  to  call  pur- 
chase money,  rent,  interest,  operations  in  stocks  in  case 
of  persons  of  high  standing,  by  a  different  name  from 
that  they  bear  among  persons  of  lower  rank.  Language 
is  too  intelligent  a  thing  to  lay  stress  upon  matters  so 
absolutely  irrelevant. 

The  essence  of  salary  and  all  other  similar  forms  of 
reward  depends  upon  the  combination  of  economic  and 
ideal  reward.  They  add  to  the  two  species  of  simple 
reward,  viz.,  the  purely  economic  and  the  purely  ideal, 
still  a  third,  which  is  composed  of  both ;  I  will  call  it  the 
mixed.  It  is  conceivable  that  in  this  combination  the 
two  elements  are  only  united  as  in  a  mixture  with- 
out  mutually  affecting  each   other.      In    this  case  the 


142  THE   CONCEPT   OF   PURPOSE     [Ch.  Vli 

principles  of  wages  would  apply  fully  to  salary  also.  That 
this  is,  however,  not  the  case,  but  that  the  combination 
influences  the  economic  reward  in  such  a  way  that  under 
certain  circumstances  not  the  least  trace  is  left  of  that 
which  constitutes  its  essence,  the  giving  of  an  equiva- 
lent for  the  work  —  of  this  anyone  can  convince  himself 
who  wishes  to  make  a  trial  in  the  three  relations  men- 
tioned: art,  science,  and  public  (State,  Church)  service. 

Is  the  high  compensation  of  a  Catholic  ecclesiastical 
prince  an  equivalent  for  his  work?  Does  the  difference, 
often  so  great,  between  the  salary  of  the  president  of  a 
board  and  that  of  the  other  board  members  correspond 
to  the  difiference  in  value  of  their  labor  power,  or  the 
difference  in  the  measure  of  their  exertion?  Is  the  honora- 
rium of  the  writer  or  composer  always  regulated  accord- 
ing to  the  value  of  his  writing  or  composition?  Schubert 
gave  away  many  of  his  immortal  compositions  for  almost 
nothing,  while  at  the  same  time  and  in  the  same  place 
Strauss,  the  composer  of  waltzes,  received  hard  cash  for 
his  waltzes. 

Is  it  the  money  that  guides  the  hand  of  the  painter, 
the  sculptor,  the  poet,  the  scholar?  Cornelius  sacrificed 
many  years  of  time  and  trouble  in  the  Villa  Bartholdi 
in  Rome  without  any  pay,  only  for  the  sake  of  bringing 
fresco  painting  into  favor  again,  and  yet  he  was  a  man 
altogether  without  means,  and  found  himself  often  in 
the  most  pressing  need.  Alexander  von  Humboldt  lost 
his  entire  fortune  in  the  service  of  science,  and  many  a 
scholar  spends  half  a  lifetime  of  effort  on  a  work  which 
often  scarcely  brings  him  enough  to  pay  for  the  paper, 
the  ink  and  the  oil.  Does  a  shoemaker,  a  tailor,  a  manu- 
facturer, a  merchant,  work  many  years  for  nothing  solely 
for  love  of  his  work?  The  honorarium  of  the  artist,  the 
poet,  the  scholar,  is  not  a  wage;  it  lacks  the  rnost  essen- 
tial characteristic  of  wage :  equivalence  (p.  101).  It  may 


j  7  ]  SOCIAL  MECHANICS— REWARD  143 

be  high  where  the  work  is  easy,  low  where  the  work  is 
hard,  and  may  be  wanting  entirely  where  the  work 
reaches  the  highest  grade.  And  these  are  not  merely 
single  instances;  there  are  entire  branches  of  scientific 
literature  which  find  themselves  in  the  position  of  being 
obliged  to  do  without  any  honorarium,  and  they  give 
actual  proof  of  being  able  to  do  so,  as  for  example  the 
natural  sciences.  Here  the  special  journals  exist  with- 
out paying  their  contributors,  and  the  cost  of  independent 
treatises  witji  engraved  illustrations  not  infrequently 
must  in  part  at  least  be  defrayed  by  the  author. 

The  lever  therefore  which  sets  the  talent  for  art  and 
science  in  action  cannot  be  found  in  economic  reward. 
But  there  exists  a  reward  with  which  the  economic  is 
allied,  and  which  sometimes  takes  its  place  entirely, 
and  that  is,  the  ideal. 

I  distinguish  two  kinds  of  ideal  remuneration :  external 
and  internal.  By  the  first  I  understand  the  reward  which 
is  paid  by  society  or  the  power  of  the  State  (p.  138) : 
fame,  recognition,  honor;  by  the  second  I  denote  that 
satisfaction  which  a  work  itself  affords;  such  is  the 
delight  in  intellectual  work  per  se,  the  charm  of  proving 
one's  power,  the  joy  of  discovery,  the  pleasure  in  creating, 
the  consciousness  of  having  done  a  service  to  the  world, 
of  having  utilized  one's  faculties  for  the  welfare  of  human- 
ity. The  social  effectiveness  of  ideal  reward  presupposes 
a  subjective  susceptibility  to  it,  viz.,  the  ideal  sense. 
Peoples,  ages,  individuals  who  lack  this  sense  will  never 
achieve  anything  great  in  the  domain  of  art  and  science 
—  the  ideal  flourishes  only  on  ideal  soil.  The  typical 
motive  for  art  and  science  without  which  they  cannot, 
fulfil  their  calling  is  idealism,  the  typical  motive  for  busi- 
ness is  the  desire  for  gain.  An  artist  who  cares  for 
nothing  else  than  the  gain,  who  has  no  other  interest  in 
the  work  which  he  creates  than  that  it  should  be  paid 


144  THE  CONCEPT   OF  .PURPOSE     [Ch.  VII 

for,  is  a   somewhat  superior  type  of  artisan,  and  will 
never  create  a  real  work  of  art  —  where  the  interests  of 
gain  and  art  clash  he  will  give  preference  to  the  former. 
The  counterpart  of  this  man  who  allows  himself  to  be 
guided  by  economic  motives  in  an  ideal  sphere,  is  the 
business  man  who  should  wish  to  pursue  ideal  interests 
instead  of  gain  in  the  economic  sphere.     Both  have  missed 
their  vocation;   they  pursue  within  it  an  aim  for  which 
it  is  not  intended;    the  former  should  have  been  an 
artisan,  a  merchant,   or  manufacturer;    the  latter  an 
artist  or  scholar.     Business  must  be  pursued  in  a  busi- 
nesslike manner,  the  ideal  in  an  ideal  manner;  and  this 
way  lies  the  success  of  the  individual  and  of  society.   By 
this  it  is  not  of  course  intended  to  give  expression  to  the 
foolish  idea  that  the  ideal  and  the  practical  are  opposites 
which  are  incompatible  in  the  same  person,  so  that  he  who 
feels  called  upon  to  represent  the  former  must  be  unprac- 
tical, and  he  who  represents  the  latter  must  be  inaccessible 
to  the  ideal.     Experience  shows  the  truth  of  the  contrary 
in  both  domains,  and  in  reference  to  the  practical  man, 
art  and  science  have  every  reason  to  think  gratefully  of 
their  advancement,  frequently  made  only  through  those 
sacrifices  by  which  booksellers  and  art  dealers  of  the 
higher  type  have  made  their  works  possible. 

In  art  and  science  the  equivalent  of  the  performance, 
which  according  to  the  preceding  discussion  is  a  union  of 
the  ideal  and  the  economic  reward,  varies  greatly,  and 
the  establishment  of  a  fixed  scale,  such  as  is  possible  in 
pay  for  work,  would  be  an  impossibility.  The  case  is 
different  in  the  service  of  the  Church  and  the  State. 
Here  we  are  presented  with  a  system  of  reward  in  which 
the  two  component  elements,  the  economic  (salary),  and 
the  ideal  (rank),  rise  in  a  uniform  progression  from  the 
lower  stage  to  the  higher.  There  is  here  a  carefully 
thought    out    and    systematically    arranged     scale    of 


§71         SOCIAL  MECHANICS— REWARD  145 

rewards.  The  principle  of  remuneration  here  is  the  offi- 
cial estimation  of  the  importance  of  the  office  for  the 
purposes  of  the  State,  and  in  monarchies  also  for  the  per- 
son of  the  ruler  —  the  degree  which  each  one  occupies 
within  it  can  be  estimated  by  the  salary  and  rank. 
Supplementary  to  this  ordinary  system  of  reward  there 
is  besides  an  extraordinary  reward,  which  is  measured 
in  accordance  with  the  merits  of  each  case  as  it  occurs; 
economic  reward  in  the  shape  of  remuneration;  ideal 
reward  in  the  shape  of  a  title  of  honor  (in  contradis- 
tinction to  the  official  title),  and  a  decoration. 

But  not  in  all  cases  where  the  State,  to  which  I  con- 
fine myself  in  the  sequel  —  for  the  same  conditions  essen- 
tially apply  to  the  Church  and  the  municipalities  alike  — 
not  in  all  cases  where  the  State  pays  for  the  services 
rendered  it,  does  the  remuneration  belong  to  the  above 
described  system  of  rewards.  The  clerk  in  the  chancery 
does  not  receive  a  "salary"  but  "pay"  ("Lohn")  in  the 
sense  of  wages;  the  common  soldier  receives  no  "salary," 
but  compensation  ("Lohnung"),  and  many  services  the 
State  does  not  pay  for  at  all.  If  we  turn  over  in  our 
mind  all  the  services  which  are  rendered  to  the  State, 
we  shall  find  that  they  rest  upon  two  levers,  compulsion 
and  reward.     We  will  briefly  formulate  these. 

I.  Compulsion.  Certain  services,  as  for  example 
that  of  the  soldier,  the  juror,  the  witness,  the  State 
compels.  These  constitute  a  civic  duty  just  as  much  as 
the  payment  of  public  taxes.  What  determines  the 
application  of  compulsion  in  these  is  not  the  indispen- 
sable nature  of  the  service.  Judges  and  military  officers 
are  quite  as  indispensable  as  jurors  and  common  sol- 
diers, and  yet  the  latter  are  compelled,  the  former  are 
not.  The  reason  is  two-fold.  First,  because  every  one 
not  affected  by  special  disabilities  is  capable  of  perform- 
ing these  services,  and  also  because  by  reason  of  their 


146  THE   CONCEPT   OP^   PURPOSE     [Ch.  VII 

temporary  duration  no  one  is  hindered  because  of  them 
in  the  choice  and  pursuit  of  a  civil  vocation.  Service  of 
the  State,  on  the  other  hand,  in  the  professional  sense  of 
the  term  presupposes  a  fitness  to  be  gained  only  by  long 
preparation,  and  the  permanent  and  exclusive  devotion 
to  it  demands  the  pledge  of  one's  whole  existence.  This 
is  a  sacrifice  which  the  State  cannot  without  being 
unjust  impose  arbitrarily  upon  this  or  that  person,  but 
which  it  must  make  dependent  upon  the  free  choice  of 
the  individual,  and  make  possible  by  granting  a  liveli- 
hood (see  below).  Where  an  indemnity  is  granted  for 
those  compulsory  services  also  (the  compensation  of  the 
soldier,  the  fees  of  the  witnesses,  the  allowances  of  the 
jurors),  it  does  not  come  under  the  point  of  view  of  re- 
ward, but  under  that  of  living  expenses  during  the  time 
of  service  (see  below). 

II.  Reward.  This  takes  a  three-fold  form: 
1.  Purely  economic  reward,  or  wages.  Wages  for 
services  rendered  to  the  State  are  those  of  the  industrial, 
inferior  and  dependent  services;  and  not  merely  the 
temporary  (those  of  the  men  in  the  offices  paid  by  the 
day,  of  the  day  laborers  and  workmen  in  the  construc- 
tion of  public  works),  but  also  the  permanent  (those 
of  the  clerical  employees).  The  scale  fixed  for  their 
payment,  which  is  often  in  crying  disproportion  to  the 
salary  of  the  officials,  shows  that  theirs  is  a  purely  eco- 
nomic remuneration,  an  equivalent  for  the  work.  But 
their  case  is  in  the  popular  mind  already  affected  by  the 
ideal  element.  A  faint  reflection  of  the  splendor  of  State 
service  falls  also  upon  the  chanceries  and  offices,  gilding 
the  pens  and  the  inkstands.  The  most  insignificant 
member  of  the  personnel  of  the  chancery  feels  elevated 
by  the  thought  of  being  a  member  of  the  great  machinery 
called  the  State  —  there  is  need  only  of  a  title:  actuary, 
secretary,  councilor  of  the  chancer>%  to  raise  the  sense 
of  his  own  dignity  to  the  greatest  height. 


5  7]         SOCIAL  MECHANICS— REWARD  147 

2.  Purely  Ideal  Reward.  Those  positions  in  which  the 
equivalent  for  the  service  consists  solely  in  the  position 
of  power  and  honor  which  is  connected  with  them,  are 
called  posts  of  honor,  offices  of  honor.  Having  compre- 
hended in  ancient  Rome  the  entire  upper  sphere  of  the 
State  government  (the  "honores"),  they  gave  place  in 
later  Rome  to  paid  service  of  the  State  (p.  86  f.).  In 
modern  Europe,  after  having  been  restricted  for  centuries 
to  the  sphere  of  the  service  of  the  Church  and  the  muni- 
cipality, it  is  not  until  recent  times  that  they  again 
recovered  a  highly  influential  position  in  the  unsalaried 
popular  representation.  Where  the  representative  of 
the  people  receives  an  allowance,  the  post  falls  under 
the  next  following  category. 

3.  Mixed  Reward.  If  the  service  is  of  a  permanent 
nature,  the  economic  reward  granted  for  it  is  called 
salary,  "Besoldung"  (payment),  "Gage"  (remuneration); 
if  it  is  of  a  temporary  nature,  like  that  of  a  popular  rep- 
resentative, or  an  official  who  has  to  execute  a  commis- 
sion, it  is  called  a  per  diem.  In  both  cases,  in  my 
opinion,  it  comes  under  the  same  point  of  view,  viz., 
that  of  support  befitting  one's  station  during  the  time  of 
service.  The  State  exempts  the  incumbent  of  the  post 
from  the  care  of  earning  his  livelihood,  permanently  in 
the  former  case,  temporarily  in  the  latter.  In  the  case 
of  per  diem  payments  no  one  will  doubt  it;  they  are 
from  their  nature  nothing  but  expense  allowances,  and 
their  amount  is  therefore  determined  not  by  the  char- 
acter of  the  work,  whether  it  be  hard  or  easy,  but  accord- 
ing to  what  is  demanded  to  maintain  the  recipient  in  a 
manner  befitting  his  station.  This  point  of  view  is 
quite  clear  in  the  various  classes  of  per  diem  allow- 
ances. That  it  applies  also  to  salary  can  be  shown  I  think 
with  a  conclusiveness  leaving  nothing  to  be  desired,  and 
I  do  not  regard  it  as  superfluous  to  furnish  the  proof. 


148  THE  CONCEPT  OF   PURPOSE     [Ch.  Vll 

since  the  political  economists  have  brought  salary  under 
the  concept  of  wages,  which,  in  my  opinion,  is  erroneous. 
Salary  is  not  wages,  i.  e.,  it  is  not  an  equivalent  for 
service,  for  it  often  remains  exceedingly  far  behind  the 
measure  determined  by  business  as  the  value  of  work. 
Banks  and  other  private  enterprises  have  often  offered 
government  officials  whom  they  desired  to  take  into  their 
service  many  times,  in  many  cases  as  much  as  ten  times, 
the  salary  which  they  had  hitherto  received.    Evidently, 
then,  the  latter  was  no  equivalent  for  their  work.     I 
believe  the  same  is  true  regarding  the  rate  of  salary  of 
most   clergymen   and   teachers;    it  is  sometimes  even 
below  the  income  of  a  subordinate  official  —  there  are 
sextons  and  beadles  who  are  better  off  than  the  clergy- 
men and  professors  placed  above  them.     The  matter 
is  most  plain  in  the  case  of  the  military  officer.     It  is 
impossible  to  see  in  his  pay  an  equivalent  for  the  life 
which  his  oath  to  the  flag  obliges  him  to  risk.     For  the 
rich  the  pay  is  scarcely  more  than  pocket  money.    The 
money  comes  so  little  into  consideration  that  they  would 
serve  without  any  pay,  and  it  is  only  the  circumstance 
that  the  rich  alone  are  not  enough  to  cover  the  need 
of  officers  which  makes  it  necessary  for  the  State  to  pay 
a  salary  at  all. 

Wages  of  labor  vary  according  to  the  quality  and 
amount  of  the  work;  the  skilful  and  diligent  worker 
earns  more  than  the  unskilled  and  slothful.  In  the  ser- 
vice of  the  State  this  circumstance  exerts  no  influence 
in  reference  to  the  salary;  every  official  of  the  same 
category,  whether  eminent  or  mediocre,  receives  the  same 
amount.  The  difference  of  calibre  between  individuals 
may  determine  promotion  and  remuneration  of  a  special 
kind  (p.  145),  but  it  exerts  no  influence  upon  salafy. 
For  the  salary  is  as  a  rule  fixed  by  law  and  does  not 
accommodate  itself  to  the  individual,  as  wages  do  to  so 


§  7  ]        SOCIAL  MECHANICS—  REWARD  149 

considerable  an  extent .  Whilst  the  latter  fluctuate  accord- 
ing to  supply  and  demand,  the  former  remains  quite 
stationary  for  entire  periods,  the  influences  to  which 
labor  and  wages  are  subject  having  no  power  over  salary. 
If  the  laborer  is  incapacitated  his  wage  ceases;  in  the 
case  of  an  official  his  salary  continues  as  pension.  A 
capable  business  man  must  have  earned  so  much  by  the 
time  he  reaches  old  age  as  to  have  repaid  the  capital 
which  he  had  to  spend  in  preparing  for  his  work  and  to 
have  acquired  enough  to  be  able  to  live.  That  with  an 
official  this  is  not  as  a  rule  the  case,  is  known.  His  salary 
hardly  yields  support  befitting  his  station  for  him  and 
his  family,  not  to  speak  of  sufficing  to  repay  the  original 
investment,  or  to  allow  provision  for  old  age.  And 
when  one  of  our  first  authorities  in  political  economy  ^' 
applies  to  the  service  of  the  State  the  otherwise  self- 
evident  postulate  that  work  must  cover  its  own  net  cost, 
I  think  I  have  two  reasons  to  oppose  to  this  statement. 
First,  that  so  far  as  I  can  judge  this  is  actually  not  the 
case.  An  official  who  does  not  want  to  give  offence  by 
declining  to  incur  the  expense  of  his  station  imposed 
upon  him  for  himself  and  family  by  his  position  and  by 
custom,  is  not  in  a  position  to  save  anything.  Secondly. 
that  we  need  not  and  must  not  make  this  requirement  in 
the  service  of  the  State.  The  original  investment  of 
the  official  is  paid  for  by  the  fact  that  he  enjoyed  the 
life-long  advantage  of  being  an  official,  an  advantage 
which  he  has  over  every  business  man,  and  for  which 
he  does  not  pay  too  high  by  the  loss  of  his  invested  capi- 
tal. The  advantages  of  official  position  lie  partly  in 
what  I  designate  as  ideal  reward:  social  position,  rank, 
power,  influence,  character  of  work,  and  partly  in  the 
superiority  of  salary  to  wages.     Being  inferior  to  the 

^^Engel,   "Uber  die  Selbstkosten  dcr  Arbeit,  zwei  Vorlesungen," 
(Berlin,  1866). 


150  THE  CONCEPT  OF   PURPOSE     [Ch.  Vll 

latter  in  reference  to  amount,  it  makes  up  amply  for  this 
disadvantage  by  the  following  qualities:  lifelong  secur- 
ity, independence  of  all  business  disturbances  and  tem- 
porary incapacity,  increase  with  advancing  age,  pension 
in  case  of  complete  disability  to  serve,  the  service  of  the 
State  being  practically  an  insurance  institution. 

These  advantages  explain  how  it  is  that  in  spite  of  the 
comparatively  low  salaries,  the  service  of  the  State 
exercises  even  from  the  economic  point  of  view  so  great 
an  attraction.  Of  all  those  who  have  to  work  no  one 
receives  a  smaller  loaf,  but  at  the  same  time  no  one  gets 
a  surer  one  and  one  less  mixed  with  bran  than  the 
government  official.  To  demand  that  the  salary  should 
pay  his  invested  capital  is  nothing  else  than  to  invest 
capital  in  an  annuity  and  demand  that  it  be  repaid  at 
death. 

For  this  reason,  because  salary  as  a  rule  yields  no 
surplus  above  one's  need,  and  does  not  make  it  possible 
to  accumulate  a  capital,  the  son  of  the  public  official  or 
military  officer  without  means,  if  it  were  not  for  other 
enabling  circumstances  which  I  shall  mention  in  the 
immediate  sequel,  would  not  be  able  to  enter  upon  the 
vocation  of  his  father.  He  would  have  to  pass  over  to 
the  industrial  class,  and  the  grandson  would  be  able 
with  the  capital  which  the  son  has  acquired  to  apply 
himself  again  to  the  vocation  of  his  grandfather.  For 
the  interest  of  the  service  this  change  would  not  be  advan- 
tageous. Sons  of  official  and  military  families  bring  to 
the  service  views  more  conformable,  and  a  temper  more 
suitable  to  the  vocation  than  sons  of  business  people. 
To  be  sure,  they  also  bring  onesidedness  and  prejudices, 
but  even  in  combination  with  these  the  endowment 
which  they  bring  into  the  service  from  their  parents' 
house  is,  after  all,  more  valuable  for  it  than  the  freedom 
from  prejudice  of  the  "homo  novus."    Now  experience 


§'?]         SOCIAL  MECHANICS— REWARD  151 

shows  that  these  classes  on  the  whole  recruit  themselves 
from  their  own  numbers,  even  more  so  than  the  considera- 
tions indicated  would  seem  to  demand.  There  are  two 
factors  which  make  this  possible.  One  is  the  free  pub- 
lic preparatory  institutions  for  certain  branches  of  the 
public  service  (military  academies,  colleges  for  army  sur- 
geons, theological  seminaries,  boarding  schools,  founda- 
tions, etc.),  as  well  as  the  facility  for  study  by  means  of 
stipends,  free  board,  etc.  The  second  factor  is  the  rich 
wife.  She  constitutes  an  important  factor  in  the  present 
system  of  the  government  service,  a  scarcely  less  impor- 
tant requirement  than  the  passing  of  the  examinations. 
Care  is  taken  that  the  procuring  of  it  shall  not  be  too 
difficult  —  the  daughter  of  the  rich  manufacturer  or 
merchant  becomes  the  wife  of  the  military  officer  or 
State  official ;  she  brings  him  the  money,  he  brings  her 
social  position,  both  are  benefited. 

We  have  so  far  brought  out  the  negative  fact  that 
salary  is  not  wages;  let  us  now  convince  ourselves  that 
the  positive  side  of  salary  consists,  as  was  stated  above, 
in  providing  support  befitting  the  station. 

Wages,  in  the  widest  sense,  give  more  than  a  mere 
livelihood;^*'  salary  gives  nothing  more  than  that.  But 
note  that  it  provides  a  livelihood  befitting  ones  station, 
and  this  element  is  the  key  to  the  understanding  of  the 
entire  matter  of  salary.  What  is  "befitting  one's  station" 
is  determined  by  the  rank  of  the  office,  and  this  in  turn 
is  determined  by  the  power  connected  with  the  office. 
It  is  not  the  greater  or  less  measure  of  knowledge  and 
experience  required  for  the  capable  management  of  the 

*"  This  opinion,  which  was  proved  in  a  convincing  manner  hy  Adam 
Smith  in  his  famous  work,  Vol.  I,  ch.  8,  was  attacked  to  be  sure  by 
the  well-known  theory  of  Ricardo,  according  to  which  labor  wage 
should  allow  only  what  is  absolutely  necessary  to  support  life,  but 
it  was  surely  not  refuted  by  it. 


152  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

various  offices  that  determines  the  amount  of  the 
salary.  In  that  case  the  ablest  would  receive  the  highest 
salary.  But  we  cannot  sufficiently  warn  the  reader 
against  seeing  in  salary  the  proper  equivalent  for  any- 
thing, whether  it  be  knowledge,  or  talent,  or  industry. 
Salary  aims  at  nothing  more  than  support  according  to 
one's  station.  He  who  has  to  incur  greater  expenses 
than  another  by  reason  of  the  importance  of  the  office 
which  he  fills  receives  also  more  liberal  means  from  the 
State  for  the  purpose.  And  according  to  the  State's 
classification  of  offices,  not  that  is  the  highest  which  re- 
quires the  greatest  measure  of  knowledge  and  exertion, 
but  that  which  bestows  the  greatest  power,  and  hence 
bespeaks  the  greatest  confidence.  The  State  follows  in 
this  case  the  nafve  popular  opinion,  which  is  imposed 
upon  more  by  power  and  influence  than  by  ability  and 
knowledge.  A  minister,  general,  ambassador,  nobly 
born  but,  as  was  formerly  often  the  case  in  our  small 
German  States  with  their  flourishing  system  of  family 
influences,  at  the  same  time  incapable,  enjoyed  among 
the  masses  much  higher  consideration  than  the  most 
distinguished  military  officer  or  government  official 
of  lower  rank.  Great  respect  is  indispensable  to  the 
complete  effectiveness  of  a  high  position,  and  the 
latter  again  is  conditional  on  the  corresponding  rank, 
title,  salary. 

The  power,  and  thereby  also  the  authorit\%  of  the 
State  reaches  its  culminating  point  in  the  person  of  the 
monarch,  and  in  a  constitutional  monarchy  there  corre- 
sponds to  this  the  pecuniary  endowment  which  is  con- 
stitutionally attached  to  royalty;  I  mean  the  civil  list. 
The  idea  of  maintenance  befitting  the  station  is  here  so 
evident  that  there  is  no  need  of  saying  anything  further 
about  it. 

I  sum  up  the  result  of  the  preceding  discussion  in  the 


§7]         SOCIAL  MECHANICS— REWARD  153 

statement  that  salary  is  regulated  according  to  position 
and  not  according  to  work  done. 

As  a  secondary  element  in  the  determination  of  salary 
is  added  a  fair  regard  for  the  increasing  need  of  support 
with  advancing  age.  The  unmarried  does  not  need  so 
much  as  the  married ;  the  first  years  of  marriage,  in  which 
the  expenses  for  children  do  not  amount  to  very  much, 
require  less  than  the  later  when  the  children  are  grown 
up.  That  is  why  the  salary  grows  with  the  years,  which 
would  otherwise  not  at  all  be  justified  in  view  of  the 
unchanged  amount  of  official  work  and  the  diminution 
rather  than  increase  of  capacity  for  work  with  advancing 
years. 

If  salary  is  intended  to  remove  from  the  official  anxie- 
ties for  the  means  of  existence,  this  extends  also  to  his 
wife  and  children,  for  the  possession  of  a  family  pertains 
to  complete  existence.  In  the  pension  of  the  widow  this 
accessory  function  of  salary  appears  in  its  independence 
and  receives  official  recognition.  The  pension,  that 
paid  to  the  widow  as  well  as  to  the  official  himself,  is 
characterized  as  a  continuation  of  the  support  after  the 
cessation  of  service.  If  salary  were  wages,  then  pension 
would  be  an  unwarranted  abuse,  which  no  conscientious 
financial  administration  would  tolerate;  but  if  on  the 
contrary  it  is  that  which  I  conceive  it  to  be,  then  pension 
is  only  its  last  corollary. 

From  the  purpose  which  salary  is  intended  to  carry 
out  there  proceeds  the  obvious  limitation  by  which  an 
official  is  not  permitted  to  pursue  a  business.  If  salary 
were  wages  like  any  other,  there  would  be  no  reason  why 
the  State  should  forbid  its  official  to  obtain  an  increased 
income  for  himself  by  means  of  an  additional  business; 
we  might,  on  the  contrary,  suppose  that  the  State  would 
welcome  such  effort  on  the  part  of  the  official  thus  to 
supplement  an  inadequate  salary.     But  as  the  object  of 


154  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

the  salary  is  the  granting  of  a  livelihood  by  the  State, 
apart  from  other  considerations  (division  of  activity, 
dependence  upon  the  public,  injury  of  social  position) 
the  pursuit  of  a  business  would  justify  the  charge  against 
the  State  that  it  does  not  give  its  servants  that  to  which 
they  have  a  just  claim.  That  regard  for  an  undimin- 
ished conservation  of  his  working  power  for  the  service 
of  the  State  is  not  the  only  ground  of  the  prohibition  is 
clearly  proven  from  the  fact  that  the  same  applies  to  the 
wives  of  the  officials  as  to  the  officials  themselves.  The 
wife  of  a  president  may  not  keep  a  fancy  goods  shop; 
the  wife  of  a  mayor  must  not  engage  in  the  vegetable 
business;  the  husband  who  would  tolerate  such  doings 
would  thereby  soon  lose  his  own  position. 

My  last  argument  I  derive  from  the  relative  lowness 
of  salaries.  The  salary  never  exceeds  the  limit  of  sup- 
port in  accordance  with  the  station,  whereas  wages 
often  go  far  beyond  it.  There  are  high  salaries,  but 
even  the  highest  do  not  give  more  than,  and  often  hardly 
as  much  as  is  necessary  for  living  in  a  manner  becom- 
ing one's  station.  No  minister's  salary  approaches  the 
income  of  a  celebrated  opera  singer,  of  a  famous  surgeon, 
etc.  Therefore  an  official  in  the  service  cannot  save 
anything,  cannot  even  have  repaid  to  him  the  capital 
invested  (p.  149).  An  artisan,  a  manufacturer,  a  mer- 
chant, who  has  not  saved  anything  in  the  course  of  a 
long  life  and  strenuous  activity,  has  shown  thereby  that 
he  did  not  understand  his  business,  or  that  he  managed 
badly.  An  official  who  acquired  a  fortune  in  the  ser- 
vice of  the  State  shows  on  the  contrary  that  he  either 
denied  himself  what  he  should  have  had,  or  appropriated 
what  he  should  not  have.  In  normal  relations  an  offi- 
cial who  entered  the  service  without  money  leaves 
nothing  but  a  wife  and  children,  and  not  seldom  also 
debts.     The  accounts  of  the  State  are  correct  only  when 


8  7]         SOCIAL  MECHANICS— REWARD  155 

his  finances  disappear  with  his  death.  And  we  must 
admit  that  the  State  well  knows  how  to  calculate.  If 
any  blame  can  be  attached  to  it  in  reference  to  its  regu- 
lations concerning  salary,  it  is  surely  not  that  of  exceed- 
ing the  measure  of  support  befitting  the  station,  but  rather 
that  of  falling  below  it.  And  this  perhaps  in  a  manner 
which  not  merely  contains  an  injustice  toward  the  indi- 
vidual but  in  a  great  measure  also  runs  counter  to  the 
true  interest  of  the  service.  A  starvation  diet  may  in 
certain  circumstances  be  clearly  called  for,  but  whether 
it  is  the  right  means  for  developing  a  feeling  of  duty  and 
the  ideal  sense  may  be  doubted. 

An  interesting  confirmation  of  the  view  developed 
above  is  furnished  by  the  Roman  nomenclature  for  the 
various  compensations  received  for  public  service  in 
Roman  times.  The  pay  of  the  subaltern  officials  is  the 
only  one  which  is  designated  as  real  pay  for  work 
("merces")  ;*^  for  every  other  compensation  the  lan- 
guage emphasizes  the  purpose  of  maintenance.'*''  Thus, 
for  example,  in  military  service  we  have  the  "stipen- 
dium,"  the  "aes  hordearium,"  the  "salarium,"  the 
"congiarium,"*^    and    in   the    later    civil    service    the 

"  Lex  Cornelia  de  XX  quaestoribus  I,  2;  II,  33.  {Bruns,  "Pontes 
Juris  Romani  Antiqui,"  ed.  Ill,  p.  79),  Cicero,  Verr.  Ill,  78. 

"The  item  "Wohnung"  (residence,  lodging),  which  plays  such  a 
great  role  in  the  modern  subject  of  salary  (official  residences,  allowance 
for  rent,  real  allowance)  is  not  represented  in  the  following  list.  Our 
modern  expressions,  such  as  "Gehalt"  (salary),  "Besoldung"  (com- 
pensation), "Gage"  (wage), "Remuneration, ""Deputat"  (allowance), 
unlike  the  Roman,  contain  no  reference  to  the  purpose.  This  can 
be  seen  only  in  "Teuerungszulage"  (allowance  for  high  cost  of  liv- 
ing). 

"  1.  "Stipendium"  from  "stips,"  which  signifies  in  the  usage  of 
the  later  language  a  small  financial  support,  but,  to  judge  from  its 
connection  with  "stipula"  (blade  of  corn),  it  seems  to  have  signified 
originally  grain.     Here  we  see  a  similar  transition  from  the  primitive 


156  THE   CONCEPT   OF    PURPOSE     [Ch.  Vll 

"annona,"  the  "cibaria,"  the  "sportula,"  the  "viaticum," 
the  "vasarium,"^^  and  likewise  the  "salaria"  of  the 
pubHc  teachers  of  art  and  science. 

All  the  special  features  of  salary  point  to  this  concept 
of  sustenance  which  we  have  suggested.  To  what  extent 
it  corresponds  to  the  nature  of  the  relation  is  clear. 
He  who  devotes  himself  to  the  service  of  the  State  or 
the  Church  must  not  have  in  view  the  acquisition  of 
money,  but  his  vocation.  In  order,  however,  that  he 
may  devote  himself  to  it  entirely,  the  State  and  the 
Church  relieve  him  of  the  care  for  his  sustenance  —  the 
declared  purpose  of  salary  consists  in  making  possible 
economically  an  undivided  devotion  to  one's  calling. 

Our  investigation  of  the  concept  of  reward  is  thus 
brought  to  a  conclusion.  It  has  led  us  to  a  relation 
which  the  usual  meaning  of  the  word  "commerce"  does 
not  embrace,  viz.,  the  service  of  the  State  and  the 
Church,  but  which  in  reality  is  quite  similar  to  it.  Like 
commerce  it  represents  the  system  of  satisfying  a  want 
of  society,  and  as  in  the  former  so  here,  too,  the  system 
depends  upon  the  lever  of  reward,  except  that  the  reward 
assumes  here  quite  a  peculiar  form.     Whether  a  private 

object  of  value  of  the  husbandman,  viz.,  grain,  to  money,  as  it  has 
taken  place  in  cattle  ("pecus"  —  "pecunia").  2.  "Aes  hordea- 
rium,"  Gaj.  IV,  27:  "pecunia,  ex  qua  hordeum  equis  erat  comparan- 
dum."  3.  "Salarium"  —  salt  allowance  paid  in  money.  4.  "Con- 
giarium"  —  originally  a  definite  measure  of  oil,  wine,  salt. 

"In  "annona"  and  "cibaria"  the  meaning  is  plain;  "sportula" 
signifies  the  fruit  or  food-basket,  then  in  the  time  of  the  empire  the 
fees  of  the  bailiff";  "viaticum,"  travelling  expenses;  "vasarium,"  a 
lump  sum  for  the  equipment  of  the  provincial  governor,  which  was 
formerly  given  to  him  in  kind.  The  element  of  conformity  to  a 
man's  station  which  I  emphasized  in  salary  is  here  expressly  attested. 
See  references  in  Th.  Mommsen,  "Rom.  Staatsrecht,"  I,  p.  240, 
note  2,  p.  241,  note  4,  where  (p.  244,  et  seq.)  more  is  to  be  found  con- 
cerning these  expressions. 


§8]         SOCIAL  MECHANICS  — REWARD  157 

person  employs  a  physician,  an  architect,  etc.,  or  whether 
the  municipality  or  the  State  appoints  him,  in  both 
cases  it  is  a  question  on  the  one  side  of  the  satisfaction 
of  needs,  and  on  the  other  of  the  economic  exploitation 
of  services,  i.  e.,  of  the  fact  of  a  contract  of  exchange  in 
the  wider  sense,  and  therefore  of  an  act  of  commerce 
(p.  74). 

Over  against  exchange  as  one  fundamental  form  of 
commerce  we  placed  above  (p.  95)  a  second,  viz.,  Asso- 
ciation.    Let  us  turn  to  it  now. 

§  8.  The  Second  Principal  Form  of  Commerce;  Asso- 
ciation. The  contract  of  exchange  presupposes  a  differ- 
ence in  purpose;  the  contract  of  association,  an  identity. 
Considered  from  the  point  of  view  of  economic  move- 
ment, the  result  of  the  former  contract  consists  in  the 
fact  that  two  values,  whether  objects,  money,  or  ser- 
vices, change  places  with  each  other.  What  the  one  had 
before  the  contract  (even  though,  as  in  service,  only 
potentially,  and  as  a  still  unpicked  fruit  of  personal 
power)  the  other  has  after  its  performance.  In  associa- 
tion, the  movement  of  persons  and  things  which  partici- 
pate in  it  is  of  a  converging  nature ;  they  all  steer  toward 
the  same  goal;  the  goal  as  well  as  the  way  is  the  same; 
the  final  gain  is  a  common  one. 

Why  do  I  combine  with  another  with  whom  I  finally 
have  to  share  profits?  Is  it  from  benevolence?  Com- 
merce knows  no  benevolence;  all  business  contracts  are 
built  upon  egoism,  and  so  is  association.  This  does  not 
mean  that  the  motive  of  benevolence  may  not  some- 
times come  into  play  in  business  association  also;  this 
is  doubtless  just  as  possible  as  that  one  may  out  of  good- 
will sell  or  let  a  thing  below  the  price;  it  means  merely 
that  association,  according  to  its  function  and  meaning 
in  commerce,  serves  not  benevolence,  but  egoism.  No 
egoist  will  share   with    another  what  he  can  have  for 


158  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

himself.  If  he  does  share,  it  shows  that  he  makes  out 
better  in  sharing  the  profits  of  a  common  business  than 
if  he  had  transacted  the  business  by  himself. 

Certain  purposes  exceed  the  means  of  the  individual 
to  such  an  extent,  and  are  so  dependent  upon  the  united 
exertions  of  many,  that  isolated  pursuit  is  altogether  out 
of  the  question.  For  such,  association  is  the  only  think- 
able and  the  necessary  form.  Among  these  must  be 
counted  all  such  purposes  as,  at  the  present  day,  form 
the  problem  of  political  or  religious  communities  or  of 
the  State.  At  a  time  when  such  communities  did  not 
exist,  the  one  who  desired  to  pursue  such  common  pur- 
poses was  obliged  to  look  about  for  associates.  Before 
these  purposes,  for  example,  public  safety,  laying  out  of 
streets,  schools,  care  of  the  poor,  appointment  of  preachers, 
building  of  churches,  assumed  the  forms  of  political  or 
ecclesiastical  functions,  they  were  pursued  in  the  form  of 
free  association,  as  is  still  the  case  at  the  present  day 
among  the  inhabitants  of  North  America.  For  all  these 
purposes  the  individual  has  only  the  choice  of  either 
renouncing  them  entirely  or  pursuing  them  in  the  form 
of  combination  with  others.  There  are  other  purposes 
on  the  contrary  which,  to  judge  from  experience,  can  be 
just  as  well  pursued  by  individuals  as  by  societies,  for 
example,  mercantile  business  and  industrial  enterprises. 
The  motive  which  determines  the  individual  to  look 
about  for  an  associate  in  these  consists  in  the  fact  that 
he  is  in  want  of  one  or  the  other  of  the  requirements 
necessary  for  the  undertaking,  which  he  can  complete 
by  inviting  another  person.  He  possesses  by  himself 
the  required  knowledge  and  business  connections,  but 
he  has  not  sufficient  capital,  or  conversely,  he  has  the 
capital  but  not  the  technical  knowledge;  or  he  has  both, 
but  not  the  credit  in  the  business  world  or  the  required 
business  connections,  etc.,  whereas  another  finds  himself 


§8]         SOCIAL  MECHANICS— REWARD  159 

in  possession  of  that  which  he  lacks,  and  is  ready  to 
place  it  at  his  disposal.  In  the  contract  of  exchange, 
the  difference  of  purpose  has  corresponding  to  it  a 
difTerence  in  the  services  rendered  by  the  two  parties 
(p.  95) ;  in  association,  the  identity  of  purpose  is  com- 
patible with  the  difference  as  well  as  identity  of  the 
means  contributed  by  the  individuals. 

This  combination  of  the  required  means  by  getting 
the  assistance  of  another  is,  however,  possible  not  only 
in  the  form  of  association,  but  also  in  that  of  a  contract 
of  exchange.  If  a  person  possesses  the  money  required 
for  the  undertaking  but  lacks  the  technical  or  mer- 
cantile knowledge,  he  fills  the  want  by  the  employment 
of  an  engineer  or  a  bookkeeper,  etc.  If  he  lacks  suf- 
ficient money  he  adds  to  it  by  borrowing  from  the  capi- 
talist; in  short,  everything  that  is  necessary  for  the 
undertaking  can  be  procured  just  as  well  by  contract 
as  by  association. 

What  it  is  that  in  such  a  case  decides  for  the  one  or 
the  other  form  cannot  be  stated  in  general  terms.  One 
is  driven  by  circumstances  to  the  choice  of  partnership 
because  those  to  whom  he  applied  demanded  a  share 
in  the  profit,  or  for  the  sake  of  security  have  insisted 
upon  control  and  co-operation  in  the  undertaking.  Or 
he  may  think  to  avail  himself  more  certainly  of  the  zeal 
and  the  industry  of  the  persons  whom  he  needs  if  he 
allows  them  to  share  in  the  business.  Another  finds 
himself  in  a  position  to  undertake  the  business  on  his 
own  account  and  sees  his  advantage  in  choosing  this 
form.  What  the  legal  consequences  are  which  attach 
themselves  to  the  choice  of  the  one  or  the  other  form,  — 
the  influence  of  the  person  invited  upon  the  management 
of  the  business  in  the  one  case  or  his  lack  of  influence 
in  the  other;  the  community  of  profit  and  loss  in  the 
former  case,  restriction  to  the  compensation  stipulated 


160  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

once  for  all  in  the  latter  —  this  is  so  well  known  to  every 
jurist  that  I  shall  say  no  more  about  it. 

Association  is,  as  has  been  remarked  above,  a  self- 
serving  relation,  i.  e.,  a  business  contract;  it  belongs  to 
the  system  of  egoism,  not  to  that  of  benevolence  (p.  77), 
He  who  enters  thereon  desires  his  own  advantage,  and 
not  that  of  the  other  —  he  who  intends  the  contrary 
puts  partnership  upside  down,  just  like  the  man  who 
makes  use  of  a  contract  of  sale  to  make  a  gift  to  the 
buyer.*^     But  the  position  which  egoism  attains  in  part- 
nership is  essentially  different  from  that  which  it  has  in 
contracts  of  exchange.     In  the  latter  the  interests  of  the 
two  parties  are  at  the  opposite  poles  —  the  more  dis- 
advantageous the  purpose  is  for  the  buyer   the  more 
advantageous  it  is  for  the  seller,  and  conversely.    The 
policy  of  each  party  can  be  resumed  in  the  following 
proposition:   his  loss,  my  profit;   no  one  can  find  fault 
with  me  for  caring  for  myself  only  and  not  for  him  (p.  93, 
note).     Every  one  must  speak  for  himself  in  these  rela- 
tions.    The  case  is  quite  different  in  partnership  asso- 
ciation.    Here  one's  own  interest  goes  hand  in  hand  with 
the  interest  of  the  other;  the  latter  cannot  suffer  without 
the  former  suffering  also:   his  advantage,  w)' advantage ; 
my  advantage,  his  advantage.     If,  therefore,  partnership 
is  to  attain  its  purpose,  this  thought  of  the  solidarity 
of  interests  of  both  parties  must  serve  as  a  guiding  star. 
He  who  makes  use  of  the  partnership  relation  to  pursue 
his  own  interest  instead  of  the  common  advantage  acts 
against  the  basic  idea  of  the  whole  institution  —  think 

*^  Such  an  upside-down  partnership  the  Roman  jurists  designate 
after  the  model  of  ^sop's  fable  a  "societasleonina,"  D.  17.2.  29  §  1,  2, 
and  declare  it  null  and  void,  ibid.  5  §  2,  "donationis  causa  societas 
recte  non  contrahitur."  On  sale  as  a  means  to  gift,  see  D.  18.  1.  36, 
"pretium  .  .  .  donationis  causa  non  exacturus  non  videturvendere." 
Cod.    jbid.    4.  38.  3,  ".  .  .  emptioni  sui  deficit  substantia." 


§8]         SOCIAL  MECHANICS— REWARD  161 

of  such  a  method  of  action  as  universal,  and  for  commer- 
cial purposes  this  relation  would  be  practically  elimi- 
nated. A  disloyal  partner  is  an  enemy  in  one's  own 
camp.  Therefore  his  punishment  according  to  Roman 
law  is  infamy,  whereas  the  practice  of  deception  in  con- 
tracts of  exchange  was  not  thus  branded.''^ 

Association  therefore,  although  called  into  being  in 
the  service  of  egoism,  raises  the  demand,  seemingly 
quite  incompatible  with  its  nature,  to  regard  that  which 
belongs  to  the  other  with  the  same  care  as  one's  own. 
By  this  means  it  throws  a  bridge  between  egoism  and 
self-denial,  and  indicates  the  point  of  neutraHzation 
where  both  become  one.^^     Contract  of  exchange,  gift, 

*^  The  Roman  jurists  clearly  recognized  this  fundamental  differ" 
ence  between  partnership  and  all  other  relations.  Partnership  is  in 
their  opinion  a  sort  of  fraternal  relation  ("societas  jus  quodammodo 
fraternitatis  in  se  habet,"  D.  17.  2.  63.  pr.).  The  principle  of  equality, 
therefore  (not  external  mechanical  equality,  but  internal,  ibid.  6, 
29.  pr.,  80),  holds  in  partnership,  in  contrast  with  the  freedom  of 
reciprocal  taking  advantage  which  is  recognized  in  contracts  of 
exchange.  Fraud  in  entering  into  partnership  makes  it  null  and  void 
(D.  4.  4.  3  §  3,  16  §  1);  conviction  of  fraud  is  punished  with  infamy; 
even  after  the  extinction  of  the  relation,  the  "socii"  owe  each  other 
consideration  at  the  execution  (the  so-called  "benef.  competentiae") ; 
while  the  relation  exists  they  are  responsible  only  for  "diligentia 
quam  in  suis  rebus."  All  these  rules,  with  the  exception  of  infamy, 
are  found  again  in  the  dotal  relation  between  husband  and  wife 
(remedy  against  overreaching,  D.  23.  3.  6  §  2;  nullity  on  account  of 
fraud,  D.  24.  3.  22  §  2;  "benef.  comp.,"  D.  42.  1.  20;  "diligentia  quam 
in  suis  rebus,"  Cod.  5.  14.  11.  In  business  contracts  not  one  of  these 
rules  holds. 

"  In  Chapter  IX,  where  I  explain  psychologically  how  egoistic 
intention  changes  into  ethical,  this  idea  will  afford  us  the  most  valu- 
able service.  The  disinterested  attention  of  the  will  to  the  interests 
of  other  persons  is  prepared  in  those  relations  in  which  those  interests 
coincide  with  one's  own.  Here  it  gets  accustomed  for  the  first  time 
to  see  itself  in  the  other,  it  is  the  "stratagem"  of  the  ethical,  by  means 
of  which  it  inveigles  the  will  into  its  own  camp  without  the  latter 
becoming  aware  of  it ;  —  a  bit  of  pedagogy  of  the  ethical  world-order. 


162  THE   CONCEPT   OF   PURPOSE     [Ch.  yil 

association,  are  the  three  types  which  exhaust  the  rela- 
tion of  the  will  to  interest  in  the  sphere  of  the  law. 
In  the  contract  of  exchange  the  will  desires  its  own 
interest  at  the  expense  of  the  other  person's  (egoism) ; 
in  gift  the  will  desires  the  other's  interest  at  the  expense 
of  its  own  (self-denial) ;  in  association  it  desires  its  own 
interest  in  the  other's  by  furthering  its  own  interest  in 
the  other's  and  the  other's  in  its  own :  partnership  equal- 
izes all  opposition  between  its  own  interest  and  the  other's. 
Now  if  in  the  form  of  association  it  were  merely  a 
question  of  association  in  the  sense  it  has  in  private  law. 
in  particular  of  trade  partnerships,  the  ethical  advance 
of  the  will  therein  would  have  little  significance  for 
society.  But  association  in  the  juristic  sense  is  only 
a  particular  case  of  a  more  general  concept.  We  gave 
it  only  as  a  type,  as  with  contract  of  exchange  and  gift. 
Just  as  behind  contract  of  exchange  in  the  narrower 
sense  lie  all  the  relations  of  exchange  and  all  commer- 
cial intercourse,  and  behind  gift  all  liberal  contracts 
and  the  whole  system  of  benevolence  (p.  98),  so  behind 
partnership  association  there  stands  an  entire  system  of 
similar  relations ;  all  societies,  fellowships,  unions,  from  the 
lowest  to  the  highest,  including  those  of  the  State  and 
Church.^^  Weembracethemallin theonewordassociation. 

*^  The  German  language  uses  the  particle  "ge-"  to  denote  relations 
of  community  (Old  High  German  "ga,"  "gi,"  "ka,"  "ki,"  "ke"), 
"Geselle"  (companion),  "Genosse"  (comrade),  "Gemeine"  (com- 
munity), "Gefahrte"  (mate),  "Geschwister"  (brothers  and  sisters), 
"Gemahl"  (spouse),  "Gevatter"  (intimate  friend),  "Gehilfe"  (help- 
mate), "Gesinde"  (domestic  servants).  For  the  first  fundamental 
form  it  uses  the  particle  "ver"  (Old  High  German,  "far,"  "fir,"  "fer," 
"for"  —  away,  forth),  "vertauschen"  (to  exchange),  "verkaufen" 
(to  sell),  "vermieten"  (to  let),  "veraussern"  (to  alienate),  "ver- 
schenken"  (to  give  away  as  a  present),  "versetzen"  (to  pledge), 
"verleihen"  (to  lend),  "versprechen"  (to promise).  The  Latin  lan- 
guage uses  for  the  first  relation  "con"  ("communis,"  "coheres," 
"correus,"  "confidejussor,"  "collega"),  for  the  latter  "trans"  ("trans- 
dare"  —  "tradere,"  "transferre,"  "transigere,"  "transscribere"). 


§8]         SOCIAL  MECHANICS  — REWARD  163 

Association.  Association  is  a  form  of  the  most  gen- 
eral applicability,  and  is  in  fact  that  which  I  stated  above 
(p.  95) :  the  second  of  the  fundamental  forms  of  social 
existence. 

I  know  of  no  human  purpose,  with  the  exception  of 
family  life,  which  could  not  be  and  has  not  been  pur- 
sued in  the  form  of  association.  Everywhere  there 
appears  beside  the  individual  a  community  aiming 
towards  the  same  goal ;  for  many  individuals  this  form  is 
the  only  possible  one ;  for  others  it  is  the  only  one  that 
adequately  meets  the  purposes  of  their  existence. 

If  we  begin  with  the  lowest  purpose  which  is  possible 
for  individual  life,  viz.,  the  satisfaction  of  the  bodily 
wants,  we  find  already  the  competition  of  the  union  with 
the  individual  in  the  form  of  co-operative  societies.  It 
is  continued  for  the  satisfaction  of  the  social  instinct  in 
the  social  unions  (clubs),  beside  the  private  entertain- 
ments of  a  social  nature.  In  the  system  of  industry  it 
grows  to  immense  numbers  in  the  form  of  manufactur- 
ing and  trading  associations,  banks,  etc.  There  exists 
scarcely  a  branch  of  industry  which  has  been  able  to 
escape  association.  Now  come  the  various  interests  of 
instruction,  education,  art  and  science,  benevolence,  which, 
although  they  are  nowadays  either  exclusively  or  prin- 
cipally taken  in  hand  by  the  State,  were  originally 
simply  a  matter  of  association,  and  in  many  cases  have 
remained  so  to  this  day  in  competition  with  State  pro- 
vision. It  is  hard  to  tell  where  the  activity  of  societies 
ceases  —  even  when  we  are  dead  there  is  a  society  that 
finally  takes  care  that  we  should  be  laid  under  the 
ground,  and  that  those  whom  we  leave  behind  us  should 
not  starve. 

And  now  consider  the  highest  forms  of  association: 
of  Church  and  State,  with  the  municipalities,  corpora- 
tions and  unions  which  belong  to  them.     Outside  of  the 


164  THE   CONCEPT   OF   PURPOSE     [Ch.  Vli 

inner  life  of  the  family  and  the  emotional  relations  of  the 
individual,  the  entire  wealth  of  human  purposes  comes 
to  its  realization  in  the  form  of  association.  Without 
any  substantial  nature  of  its  own,  being  nothing  but 
a  form,  and  a  form  of  unlimited  extent,  it  puts  itself  at 
the  disposition  of  society  as  a  ready  receptacle  to  take 
into  itself  almost  every  content  of  which  human  life  has 
need. 

And  it  gains  new  content  constantly,  whether  it  be 
that  the  forms  already  existing,  expecially  the  munici- 
pality and  the  State,  are  enriched  by  taking  on  new  aims 
hitherto  pursued  in  another  form,  or  that  new  associa- 
tions are  established  for  the  pursuit  of  new  or  old  pur- 
poses. What  future  this  form  still  has  in  store  our 
imagination  can  hardly  grasp  in  detail,  but  it  does  not 
require  the  gift  of  prophecy  to  know  that  institutional 
progress  as  well  as  the  progress  of  law  will  move  prin- 
cipally in  this  direction.  The  one  half  of  the  law,  the 
law  of  exchange,  the  Romans  developed  so  completely 
that  the  modern  nations  have  been  able  to  supplement 
it  only  in  certain  directions  (law  of  bills  of  exchange, 
insurance,  maritime  law,  etc.),  but  this  leaves  them  all 
the  more  to  do  for  the  contents  of  this  second  part  of 
the  law.  How  far  we  are  still  behind  is  shown  in  the 
history  of  stock  companies  during  the  last  decade. 
Under  the  eyes  of  our  lawgivers  the  joint-stock  companies 
have  been  transformed  into  organized  agencies  of  robbery 
and  deceit,  whose  secret  history  covers  more  baseness, 
dishonor,  villainy  than  many  a  penitentiary,  except  that 
the  thieves,  robbers  and  swindlers  instead  of  lying  in 
irons  are  bedded  in  gold. 

Public  Spirit.  I  now  resume  the  thought  which  I 
merely  touched  upon  above  (p.  160),  viz.,  the  peculiar 
combination  of  one's  own  purpose  with  that  of  another 
which    is    characteristic   of  partnership  or,   as  I    shall 


§8]         SOCIAL  MECHANICS  — REWARD  165 

hereafter  call  it,  association,  in  contradistinction  to  all 
other  contractual  relations.  The  other  person's  inter- 
est and  one's  own  here  appear  as  one,  for  he  who  furthers 
his  own  end  at  the  same  time  furthers  his  partner's 
interests,  and  vice  versa.  The  subjective  condition  of  the 
will  corresponding  to  this  objective  character  of  the 
interest  and  postulated  thereby  is  public  spirit.  Public 
spirit  embodies  a  very  interesting  phenomenon,  I  do 
not  mean  so  much  in  respect  to  its  effects,  as  in  respect 
to  its  origin.  For  him  who  is  not  content  to  consider 
social  phenomena  merely  as  given  facts,  but  is  impelled 
to  investigate  their  causes,  the  existence  of  public  spirit 
contains  a  problem  well  calculated  to  challenge  reflec- 
tion. Public  spirit  within  the  system  of  egoism  is  a 
phenomenon  just  as  strange  as  a  flower  on  a  bare  rock  — 
from  where  does  either  draw  its  nourishment? 

Public  spirit  is  merely  a  refined  form  of  egoism;  the 
egoism  of  the  man  who  sees  far  enough  to  know  that 
the  foundations  of  his  well-being  rest  not  only  upon  the 
conditions  immediately  connected  with  his  own  person, 
but  also  on  those  which  he  shares  with  others.  Public 
spirit  is  egoism  directed  to  that  which  we  have  in  com- 
mon with  others  (common  interests  as  distinguished  from 
particular  interests),  and  it  is  tested  by  subordinating 
the  latter  to  the  former,  by  risking  one's  own  to  further 
the  common  cause.  This  phenomenon  I  regard  from 
an  ethical  point  of  view  as  exceedingly  worthy  of 
notice.  Not  so  much  because  it  reveals  egoism  living 
side  by  side  in  peaceful  harmony  with  its  own  negation, 
self-denial,  but  because  the  hardest  problem  of  ethics, 
viz.,  how  comes  man,  i.  e.,  the  egoist,  to  self-denial, 
obtains  a  solution  which  to  my  mind  is  of  mathematical 
certainty.  Self-denial  does  not  come  down  to  us  from 
heaven  as  a  being  of  a  higher  order  to  put  an  end  to  the 
barren  course  of  earth  born  egoism,  but  it  is  bom  on  earth 


1G6  THE   CONCEPT   OF   PURPOSE     [Ch.  Vll 

from  the  bone  and  sinew  of  egoism,  the  product  of  a 
process  which  takes  place  within  egoism  itself.  The 
further  development  of  this  idea  must  be  postponed  to 
the  discussion  of  the  theory  of  ethics  (Chap.  IX),  as  it 
would  take  us  beyond  egoism  to  which  we  have  to  con- 
fine ourselves  here.  Here  it  is  sufficient  to  have  indi- 
cated the  point  from  which  we  shall  have  to  start  later. 

The  simplest  form  of  association  is  partnership,  in  the 
sense  of  the  Roman  law.  The  several  members  share  in 
the  common  undertaking  in  the  same  way  as  they  do  in 
their  own ;  whatever  takes  place,  takes  place  through  all 
of  them ;  there  is  no  resolution,  no  act  in  which  they  do 
not  all  co-operate.  The  extreme  contrast  to  this  is 
represented  by  the  joint-stock  company.  Here  the 
members  have  nothing  to  do  with  the  management, 
which  they  surrender  into  the  hands  of  persons  who  may 
be  members,  it  is  true,  but  need  not  be.  Here,  therefore, 
the  two  elements  which  in  the  normal  form  of  right  coin- 
cide in  the  one  person  entitled,  viz.,  interest  and  control, 
are  separated  in  such  a  way  that  the  shareholders  have 
the  interest  without  the  control,  and  the  board  of 
directors  the  control  without  the  interest.  Such  a 
separation  may  also  occur  elsewhere  as  is  well  known. 
The  reason  in  every  case  is  that  the  owner  of  the  right 
is  permanently  or  temporarily  unable  to  perform  the 
necessary  acts  of  disposal,  either  by  reason  of  the  lack  of 
personal  qualification  (minors  under  a  guardianship), 
or  on  account  of  absence ;  or  through  the  excessive  num- 
ber of  persons  entitled.  The  law  designates  this  rela- 
tion as  representation. 

Two  cases  are  here  to  be  distinguished  from  one 
another.  The  one  in  which  the  representative  is  given 
the  power  merely  to  execute  a  decision  made  by  his  prin- 
cipal without  having  any  power  of  disposal  himself,  and 
the  other  case  in  which  he  is  intended  to  make  decisions 


18]         SOCIAL  MECHANICS— REWARD  167 

in  place  of  the  person  represented,  such  being  either 
incapable  of  or  prevented  from  making  them  himself, 
in  which  case,  therefore,  the  representative  is  given  the 
power  to  dispose  of  the  affairs  of  the  other.  Here  he 
administers,  i.  e.,  he  exercises  the  power  in  the  other's 
place,  and  hence  is  designated  as  administrator  (also 
manager,  director).  Such  an  administrator,  in  the  legal 
relations  of  the  individual,  is  the  guardian  (curator  and 
ward);  and  the  administrator  of  a  whole  estate  (the 
trustee  in  bankruptcy).  In  the  relations  of  association, 
of  joint-stock  companies  as  well  as  of  all  corporations,  etc., 
it  is  the  board  of  directors.  Two  elements  character- 
ize his  legal  position :  the  power  of  disposing  of  another 
person's  right,  and  the  duty  to  exercise  it  solely  in  the 
interest  of  the  person  represented. 

In  the  last  element  lurks  the  serious  part  of  the  rela- 
tion. As  long  as  one's  own  interest  sits  at  the  helm  of 
the  right  the  interest  is  not  sacrificed;  but  as  soon  as 
the  rudder  is  confided  into  strange  hands,  this  guarantee 
which  one's  own  interest  gives  fails;  and  there  is  present 
the  danger  of  the  helmsman  directing  the  course  whither 
his  own  interest  and  not  the  other  person's  leads  him. 
The  position  of  an  administrator  contains  a  great  temp- 
tation. Exciting  his  desire  by  the  constant  touch  into 
which  it  brings  him  with  another's  property,  it  opens  to 
him  as  to  none  other  an  opportunity  to  appropriate  it  — 
no  thief  finds  it  so  easy  to  steal  as  the  administrator  of 
another  man's  property,  no  swindler  can  commit  a 
swindle  and  hush  it  up  so  easily  as  he.  Therefore  there 
is  need  of  the  greatest  guaranty  in  this  place,  where  the 
danger  is  greatest.  How  the  law  meets  this  require- 
ment in  the  case  of  guardians  and  administrators  of 
public  property  and  public  interests,  i.  e.,  the  ofilicials, 
has  no  interest  for  us  here.  That  it  has  not  been  equal 
to  it  in  reference  to  the  administrators  of  joint-stock 


168  THE  CONCEPT  OF   PURPOSE     [Ch.  Vll 

companies,  no  one  who  understands  the  matter  will 
have  any  doubt  after  the  experiences  of  recent  years. 
What  value  the  account  which  the  board  of  directors 
give  to  the  general  meeting  has  is  seen  in  the  circum- 
stance that  cheating  and  deception  has  in  no  way  been 
prevented  by  it.  You  might  as  well  think  of  protecting 
a  minor  by  making  the  guardian  give  him  an  account. 
That  there  is  need  of  other  means  here  is  clear,  and  I 
am  convinced  that  the  legislation  of  the  future  will 
succeed  in  creating  measures  of  safety  by  means  of 
criminal  and  civil  regulations.  Our  present  law  pre- 
sents a  yawning  gap  in  this  matter.  The  joint-stock 
company  in  its  present  form  is  one  of  the  most  imper- 
fect and  menacing  institutions  of  our  whole  law.  Most 
of  the  evils  which  broke  upon  us  in  the  last  years  in 
the  domain  of  business  can  either  be  directly  traced  to 
this  source  or  are  at  least  in  intimate  connection  with  it. 
I  do  not  at  all  here  wish  to  take  into  account  the  deeply 
demoralizing  influence,  poisoning  in  their  very  marrow 
the  principles  of  honor  and  honesty,  which  the  business 
of  stocks  has  exerted.  I  want  to  estimate  it  here  merely 
from  the  economic  point  of  view,  and  cannot  now  sup- 
press my  conviction  that  however  high  you  may  place 
the  resulting  advantages  for  commerce,  the  curse  which 
the  joint-stock  companies  have  brought  upon  us  is 
incomparably  greater  than  the  blessing.  The  devasta- 
tions which  they  caused  in  private  property  are  worse 
than  would  be  the  case  if  fire  and  flood,  failure  of  crops, 
earthquake,  war  and  hostile  occupation  had  conspired 
to  ruin  the  national  welfare.  If  we  compare  a  price  list 
of  the  time  since  the  last  panic  (1873)  with  a  similar  one 
taken  from  the  period  of  the  formation  of  the  joint- 
stock  companies,  the  judgment  thus  derived  will  condemn 
our  whole  business  of  stock  speculations  beyond  the 
possibility  of  palliation.     We  are  presented  with   the 


§8]         SOCIAL  MECHANICS  — REWARD  169 

picture  of  a  battlefield  or  of  a  cemetery  —  lakes  of  blood, 
corpses,  graves  —  marauders,  grave  diggers  —  the  latter 
alone  are  well  off,  for  they  alone  have  profited!     If  the 
desolating  effects  of  the  joint-stock  companies  had  been 
confined  to  the  immediate  participants,  we  could  satisfy 
ourselves  perhaps  by  saying  that  they  should  have  been 
careful,  although  their  stupidity  does  not  give  the  right 
to  deceive  them,  nor  their  carelessness  the  right  to  rob 
them.     But  all  society  is  affected  by  the  misfortune. 
The  joint-stock  companies  have  accomplished  the  feat 
of  disturbing  in  all  directions,  in  the  most  unwholesome 
way,  the  equilibrium  upon  which  the  whole  order  and 
security  of  our  business  intercourse  is  based.     In  buying 
and  renting  they  have  destroyed   the  equilibrium  be- 
tween price  and  goods;   in  speculation,  the  balance  be- 
tween  profit   and   loss;    in   production,   that   between 
demand  and  supply.     No  business  man  pays  for  a  thing 
more  than  it  is  worth.     We  are  not  afraid  even  that 
the  greatest  business  houses  will,  merely  to  make  busi- 
ness, buy  dearer  and  sell  cheaper  than  others;  that  they 
will  produce  more  than  is  needed;  that  they  will  ignore 
in  daring  speculations  the  right  relation  between  risk, 
profit  and  loss  — 'the  simple  calculus  of  egoism  prevents 
all  this  in  their  case.     And  yet  the  joint-stock  com- 
panies have  disregarded  all  principles  of  ordinary  busi- 
ness.    What  is  the  explanation?     It  is  that  the  directors 
operate  with  other  people's  money,  that  therefore  the 
regard  for  their  own  interests  —  this  so  invaluable  regu- 
lator of  all  business  —  is  not  present  with  them ;    and 
the  feeling  of  duty,  which  is  the  only  thing  that  can  take 
its  place,  is  an  altogether  unknown  quantity  to  a  great 
many  people.     What  does  a  board  of  directors  care  in 
launching  an  undertaking  whether  they  pay  for  materials 
and  labor  power  in  excess  of  their  value?     They  pay  out 
of  another's  pocket,  and  they  have  no  interest  to  wait 


170  THE  CONCEPT  OF   PURPOSE     [Ch.  VII 

until  they  can  get  them  at  a  suitable  price;  their  inter- 
est is  to  set  the  enterprise  going  as  quickly  as  possible. 
What  is  another's  money?  Seed  that  is  scattered!  If  it 
sprouts,  very  good,  a  brilliant  speculation  —  not  seldom 
the  matter  is  so  arranged  that  the,  leaders  of  the  enter- 
prise appropriate  it  for  themselves;  if  it  does  not  sprout, 
the  owner  bears  the  loss.  The  business  of  stocks  is  the 
counterpart  of  credit;  in  both,  one  operates  with  other 
people's  capital.  Everything  I  said  above  (p.  135)  of 
the  latter  holds  in  even  a  greater  degree  of  the  former 
also. 

The  problem  which  I  have  so  far  tried  to  solve  consisted 
in  demonstrating  the  apparatus  of  which  society  makes 
use,  by  means  of  the  lever  of  egoism,  to  satisfy  its  need ; 
not,  however,  as  a  given  and  ready-made  system,  but 
as  a  process  gradually  developing  under  the  influence  of 
the  idea  of  purpose.  Having  arrived  at  this  point,  I  will 
finally  attempt  to  convey  an  idea  of  the  social  problems 
which  commerce  realizes  in  its  sphere  more  or  less  per- 
fectly.    They  are  the  following:  — 

(1)  Independence  of  the  Person. 

(2)  Equality  of  the  Person. 

(3)  The  Idea  of  Justice. 

(1)  The  Independence  of  the  Person.  Independence 
does  not  mean  so  much,  as  is  commonly  supposed,  to 
have  as  few  needs  as  possible  (this  is  an  independence  for 
which  in  my  opinion  no  one  need  be  envied;  the  animal 
is  far  superior  to  man  in  this  respect,  and  the  unedu- 
cated to  the  educated) ;  but  rather  to  be  able  to  satisfy 
one'^  needs.  In  so  far  as  commerce  makes  this  possible, 
the  service  which  it  thereby  renders  to  human  society  may 
be  designated  as  the  establishment  of  human  inde- 
pendence. We  .must  not  object  that  the  condition 
attached  to  this  service,  viz.,  the  possession  of  money, 
virtually  removes  this  advantage  again;    for  however 


§8]         SOCIAL  MECHANICS— REWARD  171 

true  it  may  be  that  commerce  is  worthless  to  us  without 
money,  it  is  just  as  true  that  money  has  no  value  with- 
out commerce.  Of  what  use  are  to  us  mountains  of  gold 
among  a  savage  people  where  we  can  buy  for  it  nothing 
of  that  which  makes  life  valuable,  whereas  at  home  the 
smallest  sums  are  sufficient  to  procure  for  us  the  noblest 
enjoyments?  In  a  civilized  land  the  wage  of  the  most 
insignificant  laborer  is  sufficient  to  procure  for  him  the 
labor  products  of  thousands  of  men.  A  farthing  which 
we  pay  fetches  us  things  from  all  ends  of  the  world,  and 
sets  for  us  innumerable  hands  in  motion.  If  it  is  true 
that  no  work  is  done  for  nothing  in  commercial  inter- 
course, that  as  buyer  of  an  article  I  must  pay  for  a'l 
that  was  required  for  its  production,  from  the  first 
moment  when  the  material  left  the  earth  to  the  last  when 
it  came  into  my  hands,  then  in  the  few  farthings  which  I 
pay  for  a  cup  of  coffee  and  a  newspaper,  I  contribute  to 
all  the  costs  which  were  necessary  to  produce  them.  In 
the  coffee  I  contribute  to  the  ground  rent  of  the  owner  of 
the  plantation  —  to  the  costs  of  production  —  to  the 
costs  of  transportation  on  the  sea,  the  insurance  premium, 
the  hire  of  the  crew  —  to  the  profits  of  the  ship-owner 
and  importer,  the  commission  of  the  agent  —  to  the  tax, 
the  costs  of  transportation  on  the  railroad  —  to  the 
profits  and  business  expenses  of  the  shopkeeper  and  the 
owner  of  the  coffee-house.  And  this  is  only  the  coffee; 
in  the  sugar  and  milk  the  calculation  begins  over  again. 
In  the  case  of  the  newspaper  I  pay  with  my  farthing  for 
the  owner  of  the  paper,  for  the  printer  and  his  men,  for 
the  manufacturer  of  the  paper,  for  the  whole  editorial 
personnel,  for  the  correspondents,  for  the  telegraphic 
dispatches,  for  the  post,  for  the  newsboy.  The  items 
for  which  I  pay  in  all  these  cases  assume  dimensions 
which  defy  all  calculation  and  imagination.  But  only 
he  who  is  quite  devoid  of  judgment  can  believe  that  they 
are  not  contained  in  infinitesimal  form  in  my  farthing. 


172  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

The  phenomenon  here  presented  is  based  upon  three 
institutions  which  we  owe  to  the  perfection  of  our  pres- 
ent system  of  commerce,  viz.,  the  di\'ision  of  labor,  the 
undertaking  of  work  for  an  indefinite  number  of  future 
customers,  and  the  extension  of  trade  o\er  the  whole 
earth.  The  treasures  of  Croesus  would  not  have  been 
sufficient  to  procure  him  a  cup  of  coffee  and  a  news- 
paper if  he  had  wished  to  undertake  for  himself  indi- 
vidually all  the  operations  which  are  necessary  for  the 
purpose.  A  poor  man  today  is  served  for  a  few  pennies  b\" 
more  people  in  all  parts  of  the  earth  than  Croesus  could 
conjure  if  he  had  wished  to  empty  all  his  treasure 
chambers. 

(2)  The  Principle  of  Equality  of  the  Person.  Com- 
merce knows  no  respect  of  persons;  whether  high  or 
low,  known  or  unknowTi,  native  or  foreign  —  all  in  its 
estimation  are  aHke;  it  regards  the  money  alone.  This 
complete  impartiality  of  the  intercourse  of  exchange 
toward  persons  —  a  self-e\"ident  consequence  of  egoism, 
which  is  concerned  about  gain  alone  —  is  socially  of 
truly  inestimable  value;  for  it  gives  every  man,  who- 
ever he  may  be,  provided  he  has  the  money,  the  cer- 
tainty of  satisfying  his  wants,  the  opportunity'  of  living 
in  accordance  with  the  cultural  conditions  of  his  time. 
There  is  nothing  which  can  deprive  a  man  of  his  posi- 
tion in  commerce.  The  State  may  take  away  from  him 
freedom  and  honor,  churches  and  societies  may  reject 
him,  but  commerce  will  not  exclude  him.  A  man  may 
be  good  for  nothing  else ;  people  may  avoid  his  company 
and  contact  with  him,  but  he  is  always  good  enough  to 
do  business  with.  Money  represents  a  check  drawn  on 
society,  i.  e.,  on  the  support  of  others,  and  this  check  is 
always  honored  and  never  refused. 

This  complete  indifference  of  business  as  regards  per- 
sons is  sxTion^Tnous   with  the  equality   of    persons    in 


§S]         SOCIAL  MECHANICS— REWARD  173 

business  relations.  There  is  no  sphere  of  Hfe  where  the 
principle  of  equaHty  has  been  practically  carried  out 
with  such  perfection  as  in  business.  Money  is  the  true 
apostle  of  equaHty.  Where  it  is  a  question  of  money, 
all  social,  political,  religious,  national  prejudices  and 
oppositions  lose  their  force. ^^  Shall  we  approve  this,  or 
shall  we  deplore  it?  This  will  depend  upon  the  point 
of  view.  If  we  look  at  the  motive,  there  is  not  the  least 
reason  for  praise;  for  the  motive  is  not  humanity',  but 
egoism.  But  if  we  regard  the  result.  I  can  only  repeat 
here  the  same  remark  which  I  made  Oii  p.  34;  that 
egoism  in  ser\-ing  itself  ser\-es  the  entire  world.  Think- 
ing only  of  itself  and  it:5  o-wti  advantage,  it  realizes  in 
its  sphere,  without  suspecting  or  wishing  it,  a  thought 
which  it  othen;\-ise  opposes  wherever  it  can,  viz.,  the 
thought  of  the  equality  of  persons. 

(3)  The  Idea  of  Justice.^  The  idea  of  justice  is  the 
equaHty  which  is  demanded  and  measured  by  the  in- 
terests of  society  between  a  deed  and  its  consequences 
for  the  doer,  i.  e.,  between  an  evil  deed  and  pmiishment, 
and  a  good  deed  and  its  reirard.  This  is  nowhere  realized 
in  the  latter  direction  to  the  same  extent  as  in  the  sphere 
of  commerce.     In  business  intercourse  each  party  receives 

*'  The  present  time,  it  seems,  must  refute  this  statement  of  mine. 
In  Paris  the  stirring  up  of  the  national  hatred  against  Prussia  by  the 
press  has  led,  in  addition  to  the  \"arious  other  outbreaks  in  which 
it  manifests  itself,  also  to  placards  in  many  shops  bearing  the  legend 
"on  ne  vend  pas  aux  Prussiens"  (we  do  not  sell  to  Prussians'.  I  can 
see  in  this  only  a  foolish  demonstration,  which  like  many  others 
carries  the  impossibility  of  its  practical  execution  on  its  face.  \M11 
any  one  of  the  demonstrants  ask  a  buyer  whom  he  recognizes  as  a 
German  whether  he  is  a  Prussian,  Bavarian,  or  Austrian?  The  power 
of  money  will  make  itself  felt  in  these  shops  also,  and  those  placards 
will  neither  become  general  nor  permanent. 

^  I  discuss  this  more  fully  in  another  place.  Here  I  touch  upon  it 
only  so  far  as  it  comes  into  consideration  for  the  present  purpose. 


174  THE   CONCEPT   OF   PURPOSE     [Ch.  VII 

on  an  average,  by  means  of  the  consideration,  as  much 
in  return  as  he  has  given.  His  pay,  in  wages  and  price 
of  commodities,  is  on  an  average  an  equivalent  represent- 
ing the  economic  value  of  the  service  rendered  at  the 
time  (p.  101).  The  equivalent  may  therefore  be  defined 
as  the  realization  of  the  idea  of  justice  in  the  economic 
sphere.  The  fixing  of  punishment  is  something  arbitrary 
and  the  effect  of  a  positive  determination  by  the  State. 
The  standard  which  the  State  applies  in  awarding  punish- 
ment is  highly  elastic  and  unreliable.  The  fixing  of  the 
equivalent,  on  the  other  hand,  is  the  result  of  the  most 
careful  investigations  and  experiences,  constantly  re- 
newed by  all  those  interested.  Reward  is  as  sensitive 
as  the  mercury  in  a  barometer;  it  rises  and  falls  at  the 
slightest  changes  in  the  economic  atmosphere.  If  I  ask 
myself  where  the  idea  of  justice  is  most  perfectly  realized 
in  our  social  institutions,  the  answer  is:  in  business. 
If  I  ask  where  it  is  realized  the  earliest,  the  answer  is 
again :  in  business.  Business  and  its  remuneration  found 
their  suitable  form  earlier  than  did  the  State  and  its 
punishments.  If  I  ask  finally  where  it  is  realized  most 
uniformly  in  the  whole  world,  I  get  the  answer  a  third 
time:  in  business.  Law  and  punishment  may  have  a 
different  form  on  this  or  that  side  of  the  frontier  line, 
but  prices  and  compensations  know  no  State  boundaries ; 
although,  to  be  sure,  positive  regulations  of  the  State, 
by  duties  and  taxes,  may  prevent  their  complete  equal- 
ization in  different  States. 

The  application  of  the  concept  of  justice  to  compen- 
sation reveals  the  explanation  of  a  peculiar  psychological 
phenomenon.  I  mean  the  resistance  of  many  persons 
who  are  anything  but  miserly  to  paying  more  for  a  thing 
than  it  is  really  worth,  even  when  the  difference  is  scarcely 
worth  speaking  of.  The  cause  of  their  resistance  lies 
not  so  much  in  avarice  (as  the  unthinking  imagine),  but 


§8]         SOCIAL  MECHANICS— REWARD  175 

rather  in  their  feeling  of  right;  which  cannot  bear  the 
thought  of  being  obUged  to  give  the  opponent  what  is 
not  his  due.  It  is  not  the  economic  motive  which  calls 
forth  their  resistance,  but  the  moral.  To  free  them- 
selves from  the  suspicion  of  avarice,  and  to  give  a 
proof  that  it  is  not  the  money  as  such  that  concerns 
them,  they  often  add  immediately  thereafter  acts  of  a 
purely  disinterested  generosity.  They  fight  for  a  penny 
and  give  away  a  dollar. 

The  three  ideas  which  I  have  now  explained  in  their 
application  to  business  are  the  highest  problems  of  moral- 
ity which  ethics  knows,  and  commercial  intercourse 
has  realized  these  problems  in  a  manner  with  which  the 
methods  used  by  the  State  in  dealing  with  them  cannot 
at  all  compare.  Long  before  the  State  arose  from  its 
couch,  in  the  morning  twilight  of  history,  trade  had 
already  completed  a  good  part  of  its  day's  work.  While 
the  States  were  fighting  one  another,  trade  found  out 
and  levelled  the  roads  that  lead  from  one  people  to 
another,  and  established  between  them  a  relation  of 
exchange  of  goods  and  ideas;  a  pathfinder  in  the  wilder- 
ness, a  herald  of  peace,  a  torchbearer  of  culture. 


176  THE   CONCEPT   OF   PURPOSE    [Ch.  Mil 


CHAPTER  VIII 

SOCIAL    MECHANICS,     OR    THE     LEVERS     OF 
SOCIAL  MOTION 

2.  EGOISTIC  — COERCION 

§1.  FORM  OF  COERCION  IN  ANIMALS. —  §  2.  MAN  — 
INTELLIGENCE  ADDED  TO  FORCE  (SLAVERY, PEACE. LAW); 

—  THE  POSTULATE  OF  FORCE  IN  THE  VARIOUS  PURPOSES 
OF  THE  INDIVIDUAL.  — (§3.  PERSON,  PROPERTY;  §4. 
FAMILY;  §6.  CONTRACT;  BINDING  FORCE  OF  CONTRACTS. 
THEIR  FORM  IN  ROMAN  LAW).  —  SOCIAL  ORGANIZATION  OF 
FORCE     (§6.   PARTNERSHIP;      §7.   SOCIETY;      §8.    STATE) 

—  §  9.  THE  FORCE  OF  THE  STATE.  —  §  10.  LAW.  —  THE  ELE- 
MENTS OF  THE  CONCEPT  OF  LAW:  COMPULSION.— §  11. 
NORM.  CONTENT.  ( §  12.  THE  CONDITIONS  OF  SOCIAL 
LIFE).—  §§13.  14.   POSITION  OF  THE  INDIVIDUAL  IN  LAW. 

—  §  15.  SOLIDARITY  OF  HIS  INTERESTS  WITH  THOSE  OF 
THE    STATE. 

The  second  lever  of  social  order  is  Coercion.  The 
social  organization  of  reward  becomes  trade;  coercion 
organized  makes  the  State  and  Law.  It  is  in  the  latter 
forms  of  organization  that  commerce  attains  its  final 
fulfillment;   reward  must  have  law  behind  it. 

By  coercion  in  the  wider  sense  we  understand  the  reali- 
zation of  a  purpose  by  means  of  mastering  another's  will; 
the  concept  of  coercion  presupposes  in  the  agent  as  well 
as  in  the  passive  object  of  coercion  a  voluntary  subject, 
a  living  being.  Such  mastery  of  another's  will  is 
possible  in  a  two-fold  manner  (pp.  1 1 ,  12,  34) :  Mechani- 
cally (mechanical,  physical  coercion,  "vis  absoluta"), 
when  the  resistance  which  the  foreign  will  opposes  to 


5  1]       SOCIAL  MECHANICS— COERCION        177 

our  purposes  is  broken  by  summoning  physical  power 
superior  to  its  own.  This  is  a  purely  external  process 
of  the  same  kind  exactly  as  when  a  man  removes  a 
lifeless  object  which  is  in  his  way.  Language  denotes 
the  process  in  both  cases  as  force,  but  for  the  application 
of  force  to  a  living  being  it  alsc  uses  the  expression  coer- 
cion, evidently  in  view  of  the  fact  that  even  though 
at  first  force  moves  only  the  body,  it  also  indirectly 
moves  the  will,  since  it  hinders  it  in  its  free  self-deter- 
mination. It  is  in  this  sense,  for  example,  that  we  speak 
of  a  strait-waistcoat  ("Zwangsjacke")  in  the  case  of  the 
insane;  of  the  carrying  out  of  a  coercive  measure 
("Zwawg5vollstreckung");  of  a  bankrupt  sale  ("Zwangs- 
versteigerung"). 

In  contradistinction  to  mechanical  coercion  we  have 
the  psychological,  in  which  the  resistance  of  the  foreign 
will  is  overcome  by  itself  from  within.  We  have  shown 
above  in  what  way  this  is  done.  In  mechanical  com- 
pulsion the  act  is  undertaken  by  the  person  compelling; 
in  psychological,  by  the  person  compelled.  In  the  one 
case  it  is  a  question  of  breaking  the  resistance  of  the 
will  negatively,  here  it  is  a  positive  changing  of  its  motion ; 
a  difference  w^hich  outwardly  does  not  show,  but  is  of 
great  importance  psychologically  as  well  as  juristically. 
We  have  an  example  of  this  in  robbery,  and  the  forced 
transfer  of  ownership. 

According  to  the  difference  of  the  purpose  to  be 
attained,  namely,  according  as  it  is  negative  or  positive, 
coercion  is  propulsive  or  compulsive.  The  former  has 
for  its  object  the  prevention,  the  latter  the  undertaking 
of  a  certain  act.  Self-defence  is  propulsive,  self-help 
compulsive. 

This  is  the  formula  of  coercion  which  we  thought  it 
proper  to  lay  down  by  way  of  introduction  to  the  fol- 
lowing   discussion.      Therein    we    shall    examine    the 


178  THE   CONCEPT  OF   PURPOSE     [Ch.  Vll 

organization  of  coercion  for  the  purposes  of  society .  1 1  de- 
pends on  the  reaHzation  of  the  two  concepts,  State  and 
Law:  it  requires  the  establishment  of  the  power  which 
shall  exert  the  force  of  coercion,  and  the  laying  down  of 
rules  for  the  right  exercise  of  the  same. 

Such  organized  coercion  does  not,  however,  by  any 
means  exhaust  the  application  of  coercion  for  the  pur- 
poses of  society.  In  addition  to  political  coercion,  there 
is  still  another,  unorganized,  which  historically  every- 
where preceded  the  other,  and  asserted  itself  every- 
where along  with  it.  I  call  this  the  social.  Political 
coercion  has  for  its  object  the  realization  of  law,  social 
coercion  has  for  its  object  the  realization  of  morality. 
The  theory  of  morality  (Chapter  IX)  will  present  the 
system  of  social  coercion  as  a  development  in  connection 
with  this  question. 

In  what  follows  I  shall  make  the  attempt  to  trace  the 
two  concepts  of  State  and  Law  to  their  earliest  conceptual 
beginnings;  and  in  the  same  way  as  I  have  done  in  the 
system  of  commerce  in  reference  to  reward,  I  shall 
attempt  to  present  the  genesis  of  these  two  concepts  as 
a  necessary  result  of  the  practical  impulse  of  the  concept 
of  purpose.  The  gain  which  I  promise  myself  from  this 
is  in  my  eyes  two-fold;  first,  the  conviction  of  the  con- 
tinuity of  the  development  of  the  idea  of  purpose  in 
human  society,  and,  secondly,  the  advancement  of 
knowledge  of  the  complete  State  and  Law. 

It  is  without  doubt  a  great  advance  of  modern  phil- 
osophy of  law  as  distinguished  from  the  earlier  Law  of 
Nature  that  it  has  recognized  and  forcibly  emphasized 
the  dependence  of  law  upon  the  State.  But  it  goes  too 
far  when,  as  Hegel  in  particular  does,  it  denies  the  scien- 
tific interest  of  the  conditions  before  the  State  came 
into  existence.  The  independent  existence  of  the  living 
being  dates  from  its  birth,  but  science  goes  beyond  that 


§1]       SOCIAL  MECHANICS  — COERCION        179 

to  the  first  beginnings  of  life  in  the  mother's  womb ;  and 
the  history  of  the  development  of  the  embryo  has  proved 
itself  one  of  the  most  fruitful  and  most  instructive 
sources  of  knowledge. 

Therefore  in  law  also  science  must  not  be  hindered 
from  making  the  embryonic  state  of  law  the  object  of 
investigation,  and  it  stands  to  the  credit  of  the  advocates 
of  the  Law  of  Nature  that  they  were  not  satisfied  with 
the  mere  facts  of  the  law  and  the  State  but  raised  the 
question,  whence  are  the  two?  But  the  manner  in 
which  they  solved  the  problem,  in  making  the  historical 
State  originate  in  a  contract,  was  a  mistaken  one.  This 
is  a  pure  construction  without  regard  to  actual  history ; 
a  history  of  development,  which  did  not  take  the  trouble 
to  investigate  the  development  itself.  Against  such 
a  solution  of  the  problem  the  criticism  which  the  modern 
philosophy  of  law  opposed  was  perfectly  justified.  But 
the  problem  itself  has  not  been  thereby  removed,  it 
retains  its  full  claim  to  a  solution;  and  if  the  historian 
of  comparative  jurisprudence  and  the  philosopher  will 
join  hands,  the  history  of  the  development  of  law  will 
in  time  be  no  less  instructive  to  us  jurists  than  that  of 
the  foetus  has  become  for  the  comparative  anatomist. 

The  earliest  commencement  to  our  investigation  ex- 
tends in  the  case  of  coercion  further  back  than  in 
reward.  Reward  originates  in  man,  coercion  is  already 
found  in  animals.  It  appears  in  its  lowest  form  among 
animals;  in  its  highest  in  the  State.  Let  us  try  whether 
we  can  fill  the  interval  between  the  two  with  an  un- 
broken chain  of  intermediate  links. 

§  1.  The  Animal.  Force.  We  apply  the  concept 
of  force  ("Gewalt")  equally  to  inanimate  and  animate 
bodies;  we  speak  of  the  force  of  the  storm,  of  the  sea, 
of  the  falling  body ;  and  of  violence  ("Gewalt")  which  one 
animal  enforces  against  the  other.     Outwardly  alike,  the 


180  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

processes  are  inwardly  quite  different.  When  the  storm 
uproots  the  tree,  or  when  the  sea  breaks  through  the  dam, 
it  is  the  law  of  causality  alone  which  is  carried  out;  but 
when  one  animal  overcomes  the  other  and  kills  it  or 
devours  it,  it  does  it  for  a  purpose.  Such  action,  there- 
fore, does  not  come  under  the  law  of  causality  but  under 
the  law  of  purpose.  But  the  purpose  which  force  ser\es 
in  the  animal  is  the  same  as  in  the  world  of  man:  the 
preservation  and  maintenance  of  one's  life.  Force  fol- 
lows out  its  purpose  in  the  animal,  in  man,  and  in  the 
State.  The  effects  of  force  depend  on  the  predominance 
of  power;  ever^'where  in  nature  the  stronger  lives  at  the 
expense  of  the  weaker.  But  occasion  for  the  application 
of  force  is  offered  only  where  the  conditions  of  life  on  the 
two  sides  clash,  and  the  weaker  refuses  to  subordinate 
his  share  of  life  to  that  of  the  stronger.  This  leads  us 
to  coercion. 

Psychological  Coercion.  In  comparison  with  the  use 
of  physical  force,  its  employment  denotes  a  very  great 
progress.  An  inanimate  weaker  body  cannot  avoid 
the  thrust  of  the  stronger  body,  but  a  weaker  animal 
may  escape  by  flight  from  the  stronger;  and  by  thus 
leaving  the  path  open  to  the  opponent  who  disputes  the 
same  with  it,  it  preserves  its  own  life.  An  animal,  a 
man  or  a  people  which  avoids  the  stronger,  establishes, 
by  subordinating  the  conditions  of  its  own  life  to  those 
of  the  other,  a  "modus  vivendi"  between  itself  and  the 
other.  Accordingly,  to  yield  to  coercion  becomes  a 
means  of  self-preservation  for  the  one  coerced.  The 
weaker  dog,  w'hich  without  w'aiting  for  the  fight  leaves 
the  bone  to  the  stronger,  sacrifices  the  bone  in  order  to 
save  its  life.  Force  is  the  maintenance  of  one's  own 
purpose  by  means  of  denying  in  principle  and  suppressing 
in  fact  the  purpose  of  the  other.  Coercion  makes  com- 
patible both  purposes  by  means  of  intelligence  and  the 


§2]      SOCIAL  MECHANICS  — COERCION         181 

resulting  submission  of  the  one  threatened.  Force 
means  negation  of  the  will,  coercion  is  the  restriction 
thereof.  That  the  animal  has  the  degree  of  intelligence 
to  understand  a  mere  threat  on  the  part  of  the  other,  and 
to  get  out  of  its  way,  has  become  in  the  hands  of  nature 
one  of  the  most  effective  means  of  making  possible  the 
co-existence  of  the  weaker  with  the  stronger.  To  the 
weaker,  to  whom  she  denies  the  strength  of  withstanding 
the  attack,  she  gives  as  a  compensation  intelligence  to 
withdraw  himself  from  it. 

The  case  of  coercion  which  we  had  till  now  before  us 
we  designated  above  propulsive  coercion,  and  this  kind 
predominates  in  the  animal  world  to  such  a  degree  that 
we  might  be  tempted  to  regard  it  as  the  only  one. 
But  the  animal  world,  too,  knows  some  cases  of  compul- 
sive coercion.  The  most  interesting  case  is  that  of  the 
predatory  excursions  of  ants,  in  which  one  tribe,  ordered 
in  battle  array  under  the  direction  of  its  officers,  takes 
the  field  against  another  tribe.  The  lot  of  the  van- 
quished is  not  annihilation,  but  slavery;  the  van- 
quished enemies  are  compelled  by  the  victors  to  work  for 
them. 

§  2.  Man — Self-control  of  Force.  Life  of  the  stronger 
at  the  expense  of  the  weaker,  annihilation  of  the  latter 
in  conflict  with  the  former, —  such  is  the  form  of  life  in 
the  animal  world ;  assured  existence  also  of  the  weakest 
and  the  poorest  by  the  side  of  the  strongest  and  mightiest, 
—  such  is  the  form  of  life  in  the  human  world.  And  yet 
man  historically  found  no  other  point  of  departure  than 
the  animal ;  but  nature  equipped  him  in  such  a  way  that 
he  was  not  only  able,  but  compelled,  to  raise  himself  to 
the  higher  stage  in  the  course  of  history.  If  the  play  of 
the  world's  history  were  renewed  a  hundred  and  a  thous- 
and times,  humanity  would  always  come  to  the  same 
point  where  it  finds  itself  at  present,  viz.,  the  law;  for 


182  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

man  cannot  but  establish  such  conditions  as  make  com- 
munity of  life  possible. 

The  history  of  force  on  the  earth  is  the  history  of 
human  egoism,  but  this  history  is  summed  up  in  the  fact 
that  egoism  becomes  wiser  by  instruction.  In  respect  to 
egoism's  use  of  force  for  its  purposes,  such  learning  con- 
sists in  its  coming  to  comprehend  how  it  must  use  force 
in  order  to  make  the  power  of  others  not  merely  harm- 
less but  useful  to  itself.  At  every  stage  in  which  he 
finds  himself,  from  the  lowest  to  the  highest,  guided  by 
his  owTi  interest,  man  uses  his  progressive  intelligence  to 
increase  his  force  as  well  as  to  moderate  it.  That 
humanity  to  which  he  rises  is  in  its  origin  nothing  else 
than  the  self-control  of  force,  as  dictated  by  man's  own 
correctly  gauged  self-interest. 

The  first  step  in  this  direction  was  slavery.  The  victor 
who  spared  the  life  of  his  vanquished  enemy  instead  of 
slaughtering  him  did  it  because  he  understood  that  a 
living  slave  is  more  valuable  than  a  dead  enemy.  He 
spared  him  for  the  same  reason  that  the  proprietor  spares 
his  domestic  animal;  the  "serv-are"  of  the  "servus" 
took  place  for  the  purpose  of  "serv-ire."^  But  even 
though  the  motive  was  purely  egoistic  —  all  the  same 
blessed  be  egoism,  which  recognized  the  worth  of  human 
life,  and,  instead  of  destroying  it  in  wild  fury,  possessed 
sufficient  self-control  to  preserve  it  for  itself,  and  hence 
for  humanity.  Recognition  of  the  economic  value  of 
human  life  was  the  first  beginning  of  humanity  in  his- 
tory. The  Romans  call  a  slave  "homo"  —  he  is  a  human 
being  who  is  nothing  more  than  a  human  being,  i.  e.,  a 
human  animal,  a  working  animal,  not  a  subject  of  rights 
("persona").     This  the  citizen  alone  is,  but  this  "homo" 

*  Roman  etymology  (passages  in  Schroder,  "Instit."  on  1.  3.  de 
jure  pers.  §  3.),  which  although  linguistically  mistaken,  contains  a 
correct  idea  objectiveh'. 


§2]       SOCIAL  MECHANICS  — COERCION        183 

signifies  nevertheless  the  first  rise  of  humanity  to  humane- 
ness. In  slavery  for  the  first  time  is  solved  the  problem 
of  the  co-existence  of  the  powerful  and  the  weak,  of 
the  victorious  and  the  vanquished. 

In  the  course  of  time  humanity  finds  gentler  forms  — 
the  lot  of  the  weak  in  comparison  with  the  strong  be- 
comes in  the  progress  of  historical  development  always 
milder.  The  conquered  people  is  not  led  into  slavery,  it 
pays  tribute;  it  buys  itself  free;  it  is  incorporated  with 
the  conquering  people,  with  inferior  rights,  and  finally 
with  equal  rights;  in  short,  the  fight  ends  with  a  contract 
which  regulates  the  relations  of  both  parties  and  allows 
the  weaker  to  remain  jree,  viz.,  a  contract  of  peace 
("pacisci"  —  to  come  to  an  understanding,  "pax"  is 
peace).  Peace  involves  the  acknowledgment  of  freedom 
in  the  person  of  the  opponent,  for  one  concludes  no  con- 
tract with  a  slave.  What  determined  the  strong  man, 
before  the  opponent  lay  as  a  slave  at  his  feet,  to  place  his 
sword  in  its  sheath  and  offer  him  fair  terms?  Was  it 
humanity?  It  was  no  other  humanity  than  that  which 
induced  him  to  spare  the  life  of  the  subdued  enemy,  viz., 
his  own  interest.  The  prospect  of  probable  or  perhaps 
certain  victory  if  he  continued  the  fight  was  obscured 
by  a  regard  for  the  price  at  which  it  must  be  bought. 
The  question  of  the  continuation  of  the  fight  took  the 
form  of  a  pure  question  of  interest.  Thus:  is  it  more 
advantageous  to  buy  rnore  at  a  high  price,  or  less  at  a  fair 
price?  Does  the  additional  profit  pay  for  the  additional 
costs?  To  compress  a  body  into  a  volume  of  x  inches  a 
force  y  may  be  sufficient,  but  to  bring  it  into  rc-1,  3'  +  10 
may  be  necessary.  Does  it  pay  to  exert  a  force  of  10  in 
order  to  gain  1?  Such  forms  the  beginning  of  the  calcu- 
lation made  by  ^very  successful  enemy.  If  he  possesses 
enough  self-control  to  give  a  hearing  to  his  intelligent 
consideration    instead   of    his   passion,    he   will   prefer 


184  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

in  his  own  interest  not  to  arouse  his  opponent  to  a  des- 
perate struggle  by  proposing  unacceptable  terms,  with 
further  prospects  of  exertions  and  sacrifices  on  his  own 
part,  which  stand  in  no  true  relation  to  the  profit  that  is 
aimed  at.  The  excess  of  pressure  beyond  what  is  bear- 
able avenges  itself  by  a  recoil.  There  is  no  need  of 
humanity  to  induce  force  to  maintain  the  right  measure. 
Mere  politics  is  sufficient. 

We  have  thus  indicated  the  manner  in  which  force 
without  the  help  of  any  other  motive  than  its  own  inter- 
ests arrives  at  law.  The  form  in  which  law  appears 
here  is,  as  has  already  been  remarked,  peace;  the  settle- 
ment of  the  fight  by  estabhshing  a  "modus  vivendi," 
which  both  parties  recognize  as  binding.  Force  thus 
sets  a  limit  to  itself,  which  it  desires  to  respect ;  it  recog- 
nizes a  norm  to  which  it  intends  to  subordinate  itself, 
and  this  norm  approved  by  itself  is  Law.  Whether  it 
actually  observes  it  is  immaterial  for  the  significance  of 
the  process  which  has  thus  been  accomplished;  it  can 
trample  the  law  under  foot,  it  can  carry  on  as  it  likes 
just  as  before,  but  the  law  has  been  placed  in  the  world 
once  for  all,  and  this  fact  can  never  be  undone  again. 
It  has  laid  down  a  rule  for  its  conduct,  and  set  up  a 
standard  by  which  to  judge  it,  unknown  before.  If  it 
tramples  under  foot  the  work  of  its  own  creation,  it  is  no 
longer  force  that  does  this,  but  despotism  —  which  is 
force  qualified  by  opposition  to  law. 

The  process  which  we  have  here  outlined  gives  the 
impression  of  an  a  priori  construction,  but  in  reality  it 
is  derived  from  a  consideration  of  history.  In  the 
sphere  of  international  relations  it  is  repeated  at  the 
conclusion  of  every  peace.  Every  peace  contract  puts 
law  in  place  of  the  temporary  struggle  by  force.  The 
motive  which  determines  the  victor  to  do  this  is  the  one 
given  above;    law  relieves  force,  which  desires  rest  for 


§2]        SOCIAL  MECHANICS  — COERCION        185 

its  own  sake  and  renounces  further  advantages  which 
stand  out  of  all  proportion  to  the  means  that  have  to 
be  spent  for  their  attainment.  The  process  has  equal 
significance  for  the  development  of  law  in  the  interior 
of  States ;  it  makes  public  law  as  well  as  private.  Who- 
ever will  trace  the  legal  fabric  of  a  people  to  its  ultimate 
origins  will  reach  innumerable  cases  where  the  force 
of  the  stronger  has  laid  down  the  law  for  the  weaker. 
The  origin  of  law  from  force  by  means  of  self-limi- 
tation has  not  merely  an  historical  interest  but  also 
an  eminently  philosophical  one.  It  is  an  error  which 
in  my  eyes  characterizes  our  entire  modern  conception 
in  ethical  matters,  that  being  in  possession  of  insti- 
tutions, views  and  concepts  gained  by  the  work  of 
many  thousand  of  years,  we  carry  over  our  own  ethical 
view  into  the  past.  This  is  true  also  of  the  conception 
of  the  relation  between  law  and  force.  To  be  sure, 
we  cannot  get  away  from  the  observation  that  the  actual 
relation  between  the  two  which  we  have  before  us  has 
not  existed  always.  But  the  question  lying  so  near  at 
hand,  whether  the  difference  in  external  relation  had 
not  in  the  past  a  corresponding  difference  in  inner  con- 
ception, is  not  asked.  We  cannot  imagine  that  that 
which  is  to  us  quite  certain  and  evident  could  ever  have 
appeared  to  man  in  a  different  light.  He  might  not 
yet  indeed,  we  think,  have  recognized  the  truth  with 
full  clearness,  but  in  any  case  he  must  have  had  an 
imperfect  idea  of  it,  obscurely  felt  it.  The  "idea"  of 
law,  we  imagine,  began  its  work  at  that  time;  and 
although  the  hindrances  were  many  which  it  met  with 
in  its  historical  realization,  still  it  was  this  idea  which 
set  man  in  motion  and  drove  him  irresistibly  farther; 
in  short,  ihe  historical  progress  of  law  is  not  a  matter 
of  quality  but  of  quantity.  That  law  and  force  are 
opposed,    that  force  must  be  subordinated  to  law,  this 


186  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

man  has  felt  correctly  from  the  very  beginning, — his 
innate  feeling  of  right  having  taught  him  this.  And 
if  force  yielded  in  the  course  of  history  to  law,  this 
has  its  ultimate  reason  in  the  compelling  power  of  the 
idea  of  law  over  the  human  spirit. 

Such  is  the  picture  of  the  history  of  the  development 
of  law  as  drawn  by  current  conception.  But  this  picture 
is  nothing  but  a  projection  of  our  present  ideas  into  the 
past;  historical  facts  present  a  quite  different  picture. 
It  is  not  to  the  ethical  conviction  of  its  nobility  and 
majesty  that  law  owes  the  place  which  it  holds  in  our 
modern  world,  but  to  the  final  results  of  a  long  process 
of  development,  and  not  to  the  beginnings  thereof.  The 
origin  is  naked  egoism,  and  it  is  only  in  the  course  of 
time  that  it  has  given  place  to  the  ethical  idea  and  the 
ethical  sentiment.  How  the  latter  could  have  proceeded 
from  it  will  be  shown  in  connection  with  the  treatment 
of  ethics  (Chapter  IX).  Here  it  is  a  question  merely 
of  the  proof  that  egoism  could  have  arrived  at  law  with- 
out the  help  of  ethics. 

The  problem  which  egoism  has  to  solve  consists  in 
bringing  together  the  two  elements  which  make  up  the 
concept  of  law,  viz.,  norm  and  force;  and  this  is  possible 
in  two  ways,  —  norm  arrives  at  force,  force  arrives  at 
norm. 

The  first  way  is  the  one  which  I  shall  present  more 
particularly  below  (§6:  Self-regulation  of  Force  in  Part- 
nership). The  common  interest  which  all  have  in  the 
establishment  of  order  calls  the  norm  into  life;  and  the 
preponderance  of  the  power  of  all  over  that  of  the  individ- 
ual assures  to  it  the  power  requisite  for  maintaining  itself 
against  the  opposition  of  the  individual.  The  private 
form  of  the  relation  is  Partnership:  a  union  of  equals 
for  a  common  purpose,  and  the  practical  maintenance 
of  it  against  the  particular  interest  of  the  individual. 


§2]        SOCIAL  MECHANICS— COERCION        187 

The  political  form  of  it  is  the  Republic.  Here  the  point 
of  departure  is  not  pre-existent  power  as  in  the  second 
method,  but  the  norm  comes  first  and  power  later.  The 
other  method  is  the  one  mentioned  above,  —  force  first, 
norm  next;  law  originating  from  the  power  of  the 
stronger,  and  in  its  own  interest  limiting  itself  by  norm. 

These  are  the  two  ways  in  which  egoism  arrives  at 
law  by  means  of  its  own  compelling  power,  two  out 
of  many  ways  leading  from  the  domain  of  egoism  into 
the  kingdom  of  ethics.  Serving  itself,  it  works  here 
as  elsewhere,  without  knowing  or  willing  it  (Chapter  III), 
for  the  establishment  of  the  ethical  order.  It  builds  the 
edifice  of  law  into  which  later,  when  it  finishes  its  work, 
the  ethical  spirit  enters  to  set  up  its  kingdom  there. 
It  could  not  do  it  if  egoism  had  not  prepared  the  path ; 
the  ethical  spirit  always  comes  in  the  second  place, 
egoism  everywhere  occupies  the  first.  Where  the  rough 
work  has  first  to  be  done,  egoism  alone  has  the  strength 
to  do  it. 

It  is  egoism,  as  was  shown  before,  which  leads  force 
to  law  by  our  second  formula.  Force  arrives  at  law 
not  as  at  something  foreign  to  it,  which  it  must  borrow 
from  the  outside,  from  the  feeling  of  law;  neither  does 
it  arrive  at  law  as  to  something  superior  to  which  it  must 
subordinate  itself  with  a  feeling  of  its  own  inferiority. 
Force  produces  law  immediately  out  of  itself,  and  as 
a  measure  of  itself,  law  evolving  as  the  politics  of  force. 
It  does  not  therefore  abdicate  to  give  the  place  to  law, 
but  whilst  retaining  its  place  it  adds  to  itself  law  as  an 
accessory  element  belonging  to  it,  and  becomes  legal 
force.  It  is  the  opposite  relation  of  that  of  today  which 
we  know  as  the  rule  of  law;  here  force  constitutes  the 
accessory  element  of  law.  But  in  this  stage,  too,  of  the 
development  of  law  the  relation  of  the  two  sometimes 
changes    about.     Force    suddenly    gives    notice    of    its 


188  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

refusal  of  obedience  to  law,  and  itself  lays  down  a  new 
law — the  coups  d'etats  of  the  political  power;  the  revo- 
lution from  above  which  is  the  counterpart  of  that 
from  below.  There  it  is  organized,  here  it  is  unorganized 
force,  which  rises  up  against  the  subsisting  law.  Legal 
theory  finds  it  easy  to  condemn  these  acts;  yet  this 
very  disturbance  of  the  normal  relation  ought  to  give  it 
occasion  to  look  upon  the  latter  with  different  eyes 
from  what  it  has  been  accustomed  to.  Law  is  not  the 
highest  thing  in  the  world,  not  an  end  in  itself;  but 
merely  a  means  to  an  end,  the  final  end  being  the  exis- 
tence of  society.  If  it  appears  that  society  cannot  main- 
tain itself  under  present  legal  conditions,  and  if  law  is 
unable  to  render  it  the  proper  assistance,  then  force 
must  step  in  to  do  what  is  demanded ;  —  these  are  the 
conditions  of  necessity  in  the  lives  of  peoples  and  States. 
In  conditions  of  necessity,  law  ceases  in  the  lives  of 
peoples  and  States  as  well  as  in  the  life  of  the  individual. 
In  regard  to  individual  necessity,  this  is  recognized  by 
the  law  itself,^  and  up  to  a  certain  point  it  has  happened 
similarly  with  States,  and  alterations  in  systems  of 
government  have  taken  place  accordingly.  In  case  of 
necessity  a  dictator  was  named  in  Rome,  the  guarantees 
of  civil  freedom  were  set  aside,  law  receded,  and  unlimited 
military  power  stepped  into  its  place.  Corresponding 
measures  at  the  present  day  are  the  right  of  the  govern- 
ment to  declare  a  state  of  siege,  and  to  issue  provisional 
laws  without  the  co-operation  of  the  estates  of  the  realm ; 
such  measures  acting  as  safety  valves,  to  enable  a  govern- 
ment to  remove  the  distress  by  course  of  law.     But 

2  Imperial  Criminal  Code,  art.  54:  A  criminal  act  is  not  present  if, 
without  being  a  case  of  self-defence,  it  is  committed  in  a  condition 
of  necessity  for  which  one  is  not  responsible,  and  which  cannot  be 
avoided  in  any  other  way,  in  order  to  save  the  agent  or  one  belong- 
ing to  him  from  present  danger  to  life  or  limb. 


§2]        SOCIAL  MECHANICS  — COERCION        189 

neither  coups  d'etats  nor  revolutions  are  any  longer 
effected  on  the  ground  of  law.  It  would  be  a  self-con- 
tradiction of  law  to  allow  them;  and  from  the  stand- 
point of  law  they  must  be  absolutely  condemned.  If 
this  viewpoint  were  the  highest,  the  judgment  concerning 
them  would  thereby  be  sealed.  But  life  stands  superior 
to  law,  and  if  the  case  be  actually  one  such  as  we  have 
here  presupposed,  a  political  condition  of  necessity,  con- 
straining us  to  choose  either  law  or  life,  the  decision 
cannot  be  doubtful :  force  sacrifices  law  and  rescues  life. 
These  are  the  saving  deeds  of  the  power  of  the  govern- 
ment. At  the  moment  when  they  are  committed  they 
spread  fear  and  terror,  and  are  branded  by  the  advocates 
of  law  as  a  criminal  outrage  against  law's  sanctity; 
but  they  often  need  only  a  few  years  or  decades,  until 
the  dust  which  they  have  raised  has  settled,  to  gain  vin- 
dication by  their  effects.  And  thereupon  the  hatred 
and  curses  which  they  brought  upon  their  author  turn 
into  gratitude  and  blessings.  Judgment  concerning 
them  is  involved  in  their  results;  from  the  forum  of 
law  where  they  are  condemned  they  make  an  appeal 
to  the  tribunal  of  history  —  the  court  which  has  always 
been  recognized  by  all  nations  to  this  very  day  as  the 
superior  and  indeed  highest — and  the  judgment  which  is 
thence  delivered  is  the  final  and  decisive  one. 

We  have  thus  indicated  the  point  where  law  emerges 
into  politics  and  history,  and  where  the  judgment  of  the 
politician,  the  statesman,  and  the  historian  has  to  take 
the  place  of  that  of  the  jurist.  He  knows  only  the  stand- 
ard of  positive  law;  but  they  show  that  whilst  law  re- 
mains indeed  applicable  to  normal  relations,  from  which 
it  was  derived,  it  is  an  impracticable  thing  frequently  by 
which  to  measure  unusual  relations,  for  which  it  was 
not  intended  beforehand  and  could  not  be.  It  is,  if 
we  are  not   afraid   to  use   the  term   law  here,  by   the 


190  THE   CONCEPT   OF   PURPOSE    [Ch.  VI 1 1 

exceptional  law  of  history  that  the  existence  of  law  is,  as 
a  rule,  made  practically  possible.  Force,  in  its  sporadic 
emergence  upon  its  original  historic  mission  and  function, 
appears  as  the  founder  of  order  and  the  organizer  of 
law. 

In  this  sense  I  am  not  afraid  to  speak  in  favor  of  force, 
and  free  myself  from  the  traditional  juristic  and  philo- 
sophic conception.  Neither  of  these  in  my  eyes  does 
justice  to  the  significance  which  force  has  in  the  world, 
and  which,  as  I  add,  it  rightly  has.  In  the  relation 
between  law  and  force  they  would  lay  all  stress  upon 
the  former  whilst  assigning  to  the  latter  merely  a  depen- 
dent position  as  mere  servant,  obliged  to  take  its  orders 
from  law  and  carry  them  out  blindly.  But  here  the 
reckoning  is  made  without  the  host;  force  is  no  will-less 
creature,  as  according  to  this  view  it  would  have  to  be. 
Force  both  knows  what  it  is  and  feels  it;  it  demands  the 
same  regard  from  law  as  law  from  it.  The  relation 
is  not  one  of  servant  and  master,  but  that  between  hus- 
band and  wife.  They  must  have  a  mutual  regard  for 
each  other  in  order  to  live  in  harmony. 

Force  can,  if  necessary,  live  without  law,  and  of  this 
it  has  actually  given  proof.  Law  without  force  is  an 
empty  name,  a  thing  without  reality,  for  it  is  force,  in 
realizing  the  norms  of  law,  that  makes  law  what  it  is 
and  ought  to  be.  If  force  had  not  prepared  the  ground 
for  law,  if  it  had  not  broken  the  resisting  will  with  iron 
fist  and  accustomed  man  to  discipline  and  obedience,  I 
should  like  to  know  how  law  would  have  been  able  to 
found  its  kingdom;  it  would  have  built  on  quicksand. 
The  despots  and  inhuman  tyrants  who  chastised  the 
nations  with  iron  rods  and  scorpions  have  done  just  as 
much  for  educating  mankind  in  law  as  the  wise  law- 
givers who  set  up  later  the  tables  of  the  laws :  the  former 
had  to  come  first  in  order  that  the  latter  might  appear. 


§2]       SOCIAL  MECHANICS  — COERCION        191 

This  was  the  mission  of  force,  even  of  the  wildest,  rudest, 
and  most  inhuman  kind  in  the  earliest  periods  of  human- 
ity.    It  accustomed  the  will  to  subordinate  itself  and 
recognize  a  superior  over  it.     Not  until  it  had  learned  this 
did  the  time  come  for  law  to  take  the  place  of  force; 
for  earlier,  law  would  have  had  no  prospects  of  success. 
And  actually  this  relation  of  force  and  law  also  corre- 
sponded to  the  conceptions  of  the  people  in  that  stage. 
These  did  not  look  upon  force  with  our  eyes;  they  saw 
nothing  improper  in  such  a  condition;  nought  detestable 
and  damnable,  but  only  what  was  natural  and  self- 
evident.     Force  as  such  made  an  impression  upon  them 
and  was  the  only  kind  of  greatness  they  could  appreciate. 
Force    ("Gewalt")    and    "mighty"    ("gewaltig")    were 
synonymous  to  their  minds;  and  that  is  why  instead  of 
detesting  the  violent  characters  of  their  rulers,  who  made 
them  feel  them  in  unmerciful  fashion,  they  extolled  and 
glorified   them,   even  as  they  despised   the  weak  and 
gentle.     They   had   an   instinctive   understanding   that 
there  is  need  of  an  iron  fist  in  a  wild  time  to  force  resist- 
ing wills  to  common  action,  that  there  needs  a  lion  to 
tame  wolves,  and  took  no  ofifence  at  his  devouring  the 
sheep  and  the  lambs.     If  we  conceive  the  people  in  that 
stage  as  equipped  with  our  modern  feeling  for  right  and 
humanity,  it  would  indeed  be  a  riddle  to  us  to  under- 
stand how  they  could  allow  such  cruel  deeds  as  history 
reports  of  their  rulers  in  inexhaustible  plenty.     But  the 
riddle  is  solved  by  the  fact  that  the  ethical  standard  for 
judging  these  things,  with  which  we  quite  unhistorically 
equip  them,  was  quite  a  foreign  thing  to  them.     In  the 
lack  of   this   feeling   lies  the  compensation  by  which 
history  made  these  unbearable  things  bearable;  they  saw 
in  such  doings  nothing  else  than  the  elemental  sway  of 
the  forces  of  nature.     They  thought  of  them  as  of  death 
by  wild  beasts.     For  physical  sufferings  they  lacked  the 


192  THE   CONCEPT   OF   PURPOSE    [Ch.  VIH 

moral  after-taste  which  makes  those  deeds  for  us  so 
horrible. 

Thus  we  see  that  force  played  actually  a  quite  different 
role  at  the  origin  of  the  social  order  from  what  it  does  in 
the  ordered  state  of  law.  It  did  this  because  it  had  a 
different  mission.  But  this  is  not  all.  Force  besides 
was  viewed  and  judged  subjectively  by  the  people  in  a 
diflferent  fashion.  For  this  last  remark  I  claim  universal 
truth  in  the  history  of  morality ;  and  I  cannot  sufficiently 
emphasize  it ;  not  merely  in  order  to  correct  the  historical 
error  which  the  opposed  view  commits,^  but  in  order  also 
to  remove  from  Providence  the  charge  of  complete  ethi- 
cal despair  which  this  view  contains  for  history.  Those 
epochs  of  humanity  which  had  to  endure  force  because 
it  alone  was  able  to  solve  the  problems  of  that  time,  viz., 
to  break  the  intractable  will  of  the  individual  and  edu- 
cate him  for  life  in  a  community  — those  epochs  had  an 
understanding  for  that  which  was  suitable  for  their 
time  just  as  we  have  for  that  which  is  suitable  for  our 
time.  Our  present  conception,  our  aversion  to  force, 
would  have  appeared  to  them  in  fact  incomprehensible; 
it  would  have  seemed  to  them  proof  of  senile  weakness 
in  us.  But  if  they  could  not  have  understood  us,  we  can 
and  ought  to  understand  them. 

If  truly  we  might  boast  of  such  understanding  I  could 
have  spared  the  preceding  discussion,  but  as  is  clear 
from  what  has  preceded,  we  are  very  far  from  having  it. 
I  consider  it  a  fundamental  error  of  our  prevalent  con- 
ception of  law  that  on  account  of  the  ideal  element  of  its 
content  it  has  too  much  left  out  of  consideration  the  \'ery 
real  element  of  personal  energy;  an  error  against  which 


8 1  shall  explain  my  attitude  toward  it  later,  first  in  Vol.  II,  p.  108 
{nativistic  theory  of  ethics),  then  in  Vol.  Ill  (critique  of  the  sense  of 
right).     [See  above  Ch.  VI,  note  3  —  Translator]. 


§2]       SOCIAL  MECHANICS  — COERCION        193 

I  have  already  frequently  had  occasion  to  speak.'*  The 
ideal  of  law  is  the  clock-work,  which  runs  its  regulated 
course,  into  which  no  disturbing  hand  enters.  How  far 
the  actual  picture  which  history  presents  to  us  of  law 
is  removed  from  this  will  be  clear  from  what  has  been 
said  before.  Law  cannot  dispense  with  energy.  Law 
cannot  do  without  it  in  reference  to  its  concrete  realiza- 
tion. For  where  its  protective  institutions  f ail ,  the  person 
entitled  to  a  right  must  enter  the  lists  for  it  with  his  own 
power.  Examples  of  this  are:  defence  in  case  of  need; 
self-defence;  instances  of  permitted  self-help,  and  war. 
Neither  can  law  dispense  with  it  in  reference  to  its 
abstract  formation  —  the  process  of  legal  evolution  is  not 
a  matter  of  mere  knowledge,  as  in  the  case  of  truth,  but 
the  result,  too,  of  a  struggle  of  interests;  and  the  weapons 
by  which  the  fight  is  won  are  not  reasons  and  deductions, 
but  the  actions  and  the  energies  of  the  national  will. 
Even  though  force  may  in  the  course  of  time  assume 
more  and  more  frequently  forms  which  are  compatible 
with  the  order  of  law,  still  instances  happen  even  in  a 
well-regulated  legal  environment  where  it  refuses  obedi- 
ence to  law,  and  as  naked  energy,  whether  by  govern- 
mental coups  d'etats  or  popular  revolutions,  accomplishes 
the  same  work  as  it  did  formerly,  when  it  first  built  up 
the  social  order,  and  laid  down  the  law. 

The  following  exposition  has  for  its  purpose  to  study 
force  during  this  first  building  up  of  the  social  order. 
Not  historically,  as  history  has  nothing  more  to  say 

*  First  in  connection  with  the  history  of  the  origin  of  Roman  law 
in  my  "Geist  desromischen  Rechts,"  Vol.  I,  §  10  (establishment  of 
rights  by  personal  energy),  and  in  other  places  of  this  work,  for  ex- 
ample. Vol.  II,  §  25,  35,  then  in  my  "Kampf  urns  Recht"  (1st  ed. 
Vienna,  1872,  7th  ed.,  1884).  My  own  insight  into  the  significance 
and  justification  of  energy  in  law  I  owe,  I  think,  to  Roman  law.  No 
other  law  forces  it  so  irresistibly  upon  the  mind  of  the  man  who  has 
eyes  for  it  as  this  law  of  the  most  energetic  people  in  the  world. 


194  THE  CONCEPT  OF   PURPOSE    [Ch.  viil 

about  these  first  beginnings,  but  from  the  point  of  view 
of  purpose.  We  must  prove  that  the  purposes  of  human 
existence  postulate  force  for  their  reaUzation.  We  shall 
imagine  man  as  thrown  exclusively  upon  the  resources 
of  his  own  energy.  We  shall  then  present  to  him  the 
purposes  of  his  purely  individual  existence,  according  to 
the  measure  of  the  urgency  and  indispensability  to  which 
they  lay  claim  for  him.  We  shall  do  this  in  order  that, 
after  we  have  gained  an  insight  into  the  insufficiency  of 
a  purely  personal  and  unregulated  force,  we  may  rise  to 
its  organization  in  a  political  form.  Our  objective  point 
is  the  State  and  the  Law ;  our  starting  point  the  individual 
himself. 

§  3.  Propulsive  Coercion  in  Law  —  Person,  Property. 
The  first  relation  in  which  the  purpose  of  human  exist- 
ence postulates  force  is  personality.  When  its  existence 
and  life  are  threatened  by  foreign  attack,  it  defends  itself 
and  repels  violence  with  violence  {propulsive  coercion). 
Nature  herself,  in  giving  man  life  and  implanting  in  him 
the  impulse  of  self-preservation,  requires  this  conflict. 
Every  being  she  has  created  must  maintain  himself  by 
his  own  power;  the  animal  as  well  as  man.  But  while 
such  defence  in  the  animal  is  purely  a  physical  process,  in 
man  it  assumes  an  ethical  form.  Man  not  merely  defends 
himself,  but  he  recognizes  that  he  has  a  right  to  and  must. 
From  this  point  of  view  we  call  the  act  self-defence 
("Notwehr").  Necessary  defence  is  both  a  right  and  a 
duty;  a  right  in  so  far  as  the  subject  exists  for  himself, 
a  duty  in  so  far  as  he  exists  for  the  world.  For  this 
reason  the  term  obligatory  self-defence  may  be  applied 
to  man,  but  not  to  an  animal;  for  the  animal  lacks  con- 
scious reference  of  its  existence  to  itself  and  the  world. 
To  deny  or  curtail  man's  right  of  self-defence  is  to  degrade 
him  below  the  beast.* 

'  And  yet  it  has  been  done!  See  concerning  it  my  "Kampf  urns 
Recht"  (7th  ed.,  p.  90).     The  Romans  with  their  heahhy  common 


§3]       SOCIAL  MECHANICS  — COERCION        195 

But  the  self-protection  of  the  person  embraces  not 
merely  what  he  is  but  also  what  he  has,  for  having  is 
extended  being  (p.  52) ;  and  here  again  language  hits 
the  nail  on  the  head  in  using  for  it  the  expression  self- 
defence  ("Selbstverteidigung").  For  the  person  defends, 
in  that  which  it  has,  its  self —its  own  complete  ego, 
extended  into  the  sphere  of  property. 

Having  is,  as  is  well  known  in  law,  two-fold  in  species, 
"de  facto"  (possession)  and  "de  jure"  (ownership);  and 
accordingly  force,  in  its  application  to  the  maintenance  of 
what  one  has,  likewise  assumes  a  double  form.  It  takes 
the  defensive  in  reference  to  maintaining  the  "status 
quo"  in  the  holding  of  a  thing ;  and  the  offensive,  in  refer- 
ence to  the  recovery  of  a  thing  which  has  disappeared 
"de  facto."  In  civilized  epochs  the  law  allows  the  per- 
son entitled  to  use  force  in  the  first  case  only;  in  the 
second  case,  on  the  other  hand,  it  directs  him  to  have  re- 
course to  the  law,  by  inflicting  severe  punishment  upon 
the  use  of  arbitrary  power  in  this  direction  (self-help  in 
contradistinction  to  self-defence) .  For  the  subject  who 
is  thrown  upon  his  own  resources,  and  receives  no  aid 
from  the  State,  as  we  are  supposing,  such  a  distinction 
is  not  yet  present,  and  propulsive  coercion  extends  equally 
to  both  cases.^  Whether  I  ward  off  the  person  who  seeks 
to  gain  possession  of  an  object  belonging  to  me,  or  take 
it  away  again  from  the  person  who  obtained  possession 
of  it  —  in  both  cases  the  purpose  of  the  force  exerted  is 
propulsive  in  its  nature,  for  it  has  for  its  object  the  nega- 
tive attitude  of  the  opponent  in  reference  to  that  which 
I  call  my  own. 

Granting  that  this  is  so,  it  will  be  objected,  what  does 
this  difference   matter?     For   positive   law   such   wide 

sense  teach:   "vim  vl  defendere  omnes  leges  omniaque  jura  permit- 
tunt,"  D.  9.  2.  45  §  4. 

"  I  proved  it  for  the  ancient  Roman  law  in  my  "Geist  des  romischen 
Rechts,"  I  §  10. 


196  THE   CONCEPT  OF   PURPOSE    [Ch.  viii 

extension  of  the  concept  has  not  the  slightest  signifi- 
cance. I  admit  it  has  no  significance  for  present  law. 
But  the  case  is  different  for  the  history  of  the  develop- 
ment of  law.  I,  at  least,  have  discovered  by  a  consistent 
investigation  of  the  concept  of  propulsive  coercion  in  its 
entire  extent  the  meaning  of  a  phenomenon  in  ancient 
Roman  law,  which  one  usually  passes  by  without  notice; 
whereas  it  agrees  fully  wath  the  broad  concept  of  propul- 
sive force,  as  laid  down  here.  Measured  by  the  modern 
standard,  every  appropriation  of  an  object  in  the  posses- 
sion of  another  on  the  part  of  the  one  entitled  to  it 
would  be  characterized  as  self-help.  The  ancient  Roman 
people  looked  upon  it  differently;  they  saw  in  it  nothing 
abnormal,  but  something  self-evident.  But  the  point 
of  view  W'hich  enabled  them  to  do  this  was  no  other 
than  the  above  of  propulsive  force,  from  which  the  conse- 
quence of  its  legal  permissibility  drawn  by  them  followed 
of  itself.  From  this  conception  we  can  explain  the  form 
which  the  protection  of  possession  and  ownership  took 
in  old  Roman  law.  The  possessor  is  entitled  to  use  force 
not  only  against  the  person  whom  he  himself  allowed 
temporarily  "de  jure"  or  "de  facto"  possession,  but  also 
against  the  one  w^ho  took  it  away  from  him  against  his 
will.  And  this  force  (and  here  lies  the  decisive  point) 
is  not  brought  by  the  Romans  under  the  point  of  view  of 
recovery  of  possession,  but  under  that  of  maintenance.'' 

'  In  juristic  terms  the  "interdictum  uti  possidetis"  and  "utrubi" 
were  "interdicta  retinendae  possessionis."  The  recuperatory  func- 
tion of  this  interdict  was  a  simple  consequence  of  the  idea  of  propul- 
sive coercion  as  the  force  directed  to  the  maintenance  of  what  be- 
longs to  one.  The  "interdicta  unde  vi"  and  "de  precario,"  on  the 
other  hand,  were  forms  of  compulsive  coercion.  They  concluded 
with  a  demand  for  restoration,  i.  e.,  for  a  positive  deed  of  the 
defendant,  whereas  all  interdicts  enjoining  "vim  fieri,  veto,  quo 
minus  .  .  ."  were  based  upon  propulsive  coercion,  i.  e.,  they  imposed 
nothing  upon  the  defendant,  but  prohibited  resistance  against  the 
self-help  of  the  plaintiff. 


§4]        SOCIAL  MECHANICS  — COERCION        197 

In  the  same  way  the  victorious  plaintiff  in  an  ancient 
procedure  of  vindication  was  entitled  to  take  the  object 
in  dispute  by  force;  the  verdict  given  enforced  no  act 
on  the  part  of  the  defendant,  as  in  later  procedure,  but 
merely  decided  the  existence  of  the  plaintiff's  ownership. 
The  practical  consequence  of  this  was  self-evident; 
the  plaintiff  realized  his  right  by  expelling  the  defendant. 
There  was  no  need  of  any  activity  on  the  part  of  the 
latter,  and  hence  absence  or  death  of  the  defendant  did 
not  exclude  the  realization  of  the  judgment  in  the  vin- 
dicatory procedure,  whereas  the  case  in  the  realization 
of  a  personal  claim  was  different.  Here  an  action  of  the 
condemned  was  necessary  for  the  purpose. 

§  4.  Compulsive  Coercion  —  The  Family.  In  per- 
sonality the  subject  is  still  limited  to  himself,  in  property 
he  passes  beyond  himself  to  the  object;  for  both  of  these 
relations  propulsive  coercion  suffices.  Both  in  the  family 
and  in  the  contract  the  subject  forms  a  relation  to  the 
person — permanent  in  the  former  case,  temporary  in  the 
latter.  This  progress  of  the  relation  conditions  also  the 
means  required  for  its  maintenance,  viz.,  the  elevation 
of  propulsive  coercion  to  compulsive.  The  master  of  the 
house  who  establishes  the  family  must  have  the  author- 
ity in  the  house,  if  it  is  to  remain;  and  nature  herself 
has  indicated  this  position  for  him  in  its  essential  out- 
lines • — •  in  relation  to  his  wife,  by  the  superiority  of  his 
physical  strength  and  by  the  greater  amount  of  work 
which  falls  to  his  share  —  in  relation  to  the  children,  by 
the  helplessness  and  dependence  in  which  they  are  for 
years, — the  influence  of  which,  even  after  they  are  grown 
up,  remains  in  the  same  relation  in  which  it  was  formed 
during  that  period. 

Thus  nature  herself  has  determined  the  family  rela- 
tion to  be  one  of  superiority  and  subordination;  and  in 
making  every  man  without  exception  pass  through  the 


198  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlii 

latter  relation,  has  provided  that  no  one  shall  enter 
society  who  has  not  already  learned  this  lesson  of  superi- 
ority and  subordination,  upon  which  relation  the  exist- 
ence of  the  State  depends.  The  family  is  for  every  man 
the  preparatory  school  to  the  State;  for  many  nations, 
as  is  well  known,  it  was  even  the  model  of  the  latter 
{Patriarchal  State). 

I  shall  not  now  add  any  more  to  the  subject  of  the 
family' relation,  as  I  have  here  to  consider  it  merely  from 
the  point  of  view  of  compulsive  coercion.  The  coricepts 
of  Duty  (Chapter  X)  and  Love  (Chapter  XI)  will  bring 
us  to  it  again. 

§5.  Compulsive  Coercion  —  Contract.  Not  every  con- 
tract requires  compulsive  coercion  for  its  security;  a 
contract  of  sale  or  exchange  which  is  at  once  carried  out 
affords  no  room  for  it,  since  it  leaves  nothing  to  be  gotten 
by  coercion.  It  must  not  be  objected  that  the  buyer 
has  to  be  protected  in  the  possession  of  the  object,  and 
the  seller  in  the  possession  of  the  money.  For  this 
there  is  no  need  of  compulsive  coercion,  propulsive  being 
sufficient.  For  a  state  of  intercourse  which  is  limited  to 
this  simplest  form  of  exchange,  viz.,  a  cash  business, 
compulsive  coercion  would  be  unnecessary.  But  this 
immediate  fulfillment  on  both  sides,  which  makes  com- 
pulsive coercion  unnecessary,  is  not  practicable  in  all 
contracts.  It  is  not  practicable  in  a  loan  —  the  lender 
must  precede  with  his  performance;  the  consideration, 
viz.,  the  payment  of  the  loan,  can  only  follow  later.  R 
is  not  practicable  in  a  contract  of  lease  —  whether  the 
rent  is  paid  before  or  after  permission  is  given  to  use  the 
object;  one  of  the  two  parties  must  come  first  with  his 
performance  and  wait  for  the  consideration.  Thus  cer- 
tain contracts  necessarily  presuppose  the  postponement  of 
the  performance  on  the  one  side,  i.  e.,  its  promise. 

Promise  denotes  a  very  great  progress  in  comparison 


§f,]        SOCIAL  MECHANICS  — COERCION        199 

with  the  lowest  form  of  contract  above  mentioned.  By 
putting  mere  speech  ("ver-sprechen"  [German  for 
promise]  —  speaking  in  favor  of  the  person  addressed, 
p.  162,  note),  the  word,  in  place  of  the  act,  it  frees  the 
contracting  parties  from  the  hampering  presupposition 
of  immediate  payment  and  possession.  It  makes  it 
possible  for  them  in  their  business  transactions  to  take 
their  future  payment  as  the  basis  of  operations,  and  dis- 
count the  future.  A  promise  is  the  emancipation  of  the 
contract  from  the  fetters  of  the  present,  and  is  an  order 
09  the  future  for  the  purpose  of  defraying  the  needs  of 
the  present. 

But  in  order  that  the  word  shall  take  the  place  of  the 
act,  there  must  be  security  that  it  will  be  exchanged  for 
the  act  at  the  proper  time;  or  as  language,  applying  the 
idea  of  pledge  to  this  case,  expresses  it,  that  the  word 
pledged  or  pawned  shall  be  redeemed.  This  is  the 
'fulfilment"  of  the  promise;  the  word  that  was  empty 
hitherto  becomes  "full,"  the  mere  thought  of  the  future 
act  becomes  a  reality.  The  guarantee  for  such  fulfilment 
depends  upon  coercion.  The  necessary  condition  for 
the  creditor's  accepting  the  promise  of  the  debtor  is 
that  the  latter  should  authorize  the  creditor  to  coerce 
him.  It  is  demanded  not  only  by  the  interest  of  the 
creditor,  but  just  as  much  by  his  own  interest.  If  the 
creditors  did  not  desire  promises  to  be  actionable,  the 
debtors  would  have  to  do  so.^ 

The  juristic  expression  for  this  effectiveness  of  the 
promise  is  the  binding  force  of  contracts.  The  contract 
"binds"  the  debtor,  the  latter  is  "bound"  by  his  word 
if  he  can  be  forced  to  "keep"  it,  i.  e.,  if  the  fulfilment  can 

'  The  same  legislative  point  of  view  applies  here  as  is  enacted  in 
D.  4.  4.  24  §  1  for  minors,  "ne  magno  incommodo  .  .  .  afficiantur 
nemine  cum  his  contrahente  et  quodammodo  commercio  eis  inter- 
dictur  (interdicto?)". 


200  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

be  compelled  by  external  force.  The  figure  by  which  the 
German  language  as  well  as  the  Latin  views  promise  is 
that  of  a  bond  by  means  of  which  the  creditor  holds  the 
debtor  firm.  The  bond  is  tied  ("contrahitur" — -"con- 
tractus"), loosened  ("solvitur"  —  "solutio"),  the  condi- 
tion of  the  debtor  is  that  of  being  bound  ("Verbind- 
lichkeit"  [German  for  obligation]  —  being  bound  in  favor 
of  another,  in  Latin  "obligatio"  from  "ob"  —  the  Ger- 
man "ver,"  i.  e.,  toward,  and  "ligare"  to  bind,  and 
"nexum"  from  "nectere"  to  bind,  to  chain). 

The  binding  force  of  a  promise  is  not  a  thing  that 
comes  to  it  from  the  outside;  it  is  inevitably  posited  in 
the  practical  function  of  it.  If  a  promise  were  not  bind- 
ing, loan  would  be  as  good  as  useless  in  business  inter- 
course; only  a  friend  would  then  be  able  to  get  a  loan. 
Contracts  of  service  and  lease  would  be  stricken  from  the 
list  of  contracts,  for  who  would  be  foolish  enough  to  give 
his  services,  or  allow  another  the  use  of  his  object,  unless 
he  were  certain  of  receiving  his  pay  and  his  rent?  Who 
would  be  foolish  enough  to  pay  the  latter  in  advance  if  he 
must  expect  that  the  promised  act  might  remain  undone  ? 
Barter  and  purchase  alone  would  be  possible  in  the  primi- 
tive and  extremely  constraining  form  of  immediate  ful- 
filment. 

In  view  of  this  practical  indispensableness  of  the  bind- 
ing force  of  contracts  it  is  scarcely  conceivable  how  the 
doctrine  of  the  Law  of  Nature  could  have  considered  it  so 
difficult  a  problem,  for  the  solution  of  which  some  have 
expended  the  most  violent  efforts,  while  still  others  have 
altogether  despaired  of  reaching  any  solution.  The 
question  became  a  problem  only  because  the  element  of 
purpose  in  it,  i.  e.,  the  function  of  promise  in  business,  was 
altogether  left  out  of  sight,  and  the  attempt  was  made  to 
answer  the  question  merely  from  reasoning  on  the  nature 
of  the  will.     Furthermore,  they  presupposed  a  purposeless 


§5]        SOCIAL  MECHANICS— COERCION        201 

volition,  and  argued  not  concerning  a  will  that  wishes 
to  attain  to  something  in  the  world  and  hence  makes 
use  of  proper  means  for  the  purpose,  submitting  to  con- 
sequences demanded  by  its  own  volition,  but  concerning 
a  will  that  knows  nothing  of  the  conditions  of  its  own 
volition.  It  forgets  in  the  next  moment  after  it  has  con- 
cluded the  contract  that  the  success  of  what  it  wills  is 
a  matter  not  of  temporary  but  of  continued  volition. 
From  this  purely  subjective  point  of  view,  which  con- 
siders only  the  possibility  of  voluntary  acts  in  the  indi- 
vidual, we  certainly  cannot  prove  why  the  same  man 
who  willed  a  thing  today  should  not  be  able  to  will  its 
exact  opposite  to-morrow.  But  the  very  point  of  view 
is  altogether  inapplicable  to  the  above  question,  which  is 
not  a  psychological  one,  but  a  problem  practical  and  juris- 
tic. It  involves  not  what  the  will  can  do  in  itself,  but 
what  it  necessarily  must  do  if  it  is  to  attain  its  purpose 
in  the  world.  By  its  purpose  we  mean  not  all  it  may  con- 
ceivably propose  to  itself,  including  the  most  foolish  and 
senseless  things,  but  such  purposes  as  are  compatible 
with  those  of  the  others  in  whose  community  it  has  its 
being.  How  far  this  is  the  case  is  a  purely  historical 
question.  The  middle  ages  recognized  contracts  as 
valid  which  we  today  simply  reject,  and  the  same  rela- 
tion will  always  be  repeated.  To  answer  the  question 
of  the  binding  force  of  contracts  by  an  abstract  formula 
is  no  better  than  to  do  the  same  in  reference  to  the  ques- 
tion of  the  best  form  of  government.  Rights  of  contract 
and  forms  of  government  are  facts  of  history,  which  can 
only  be  comprehended  in  their  relation  to  history,  i.  e., 
to  the  conditions  and  needs  of  the  time  when  they  arose. 
By  abandoning  the  firm  ground  of  history  and  undertak- 
ing to  answer  the  question  from  the  nature  of  the  sub- 
jective will,  abstracted  from  society  and  history,  the  doc- 
trine of  the  Law  of  Nature  deprived  itself  of  all  prospect 


202  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

of  solution.  Whether  it  maintains  or  denies  the  bind- 
ing force  of  contracts,  it  is  equally  mistaken  in  both  cases, 
because  it  is  in  sharp  contradiction  with  the  real  world. 
The  real  world  can  neither  affirm  nor  deny  the  question ; 
and  can  only  answer  it  according  to  its  required  purposes 
at  the  time  being. 

I  doubt  whether  any  other  legal  system  proves  this 
statement  so  strikingly  as  the  Roman  law.  In  con- 
nection with  purpose,  contract  rises  from  one  stage  to 
the  next,  even  from  the  lowest  to  the  highest;  and  this 
without  skipping  any  intermediate  step.  We  might 
suppose  we  had  before  us  not  a  historical  but  a  con- 
ceptual development  of  the  concept  of  contract,  so  coin- 
cidently  do  the  two  grow.  This  circumstance  induces  me 
to  insert  here  the  history  of  the  development  of  Roman 
obligation.  I  shall  only  offer  thereby  in  a  different 
form  what  I  have  to  give,  viz.,  the  inner  conceptual 
development  of  compulsive  coercion  in  the  contract  — ■ 
concept  and  history  move  in  perfectly  parallel  lines. 

According  to  the  conception  of  the  ancient  Romans 
a  mere  promise  ("pactum  nudum")  produces  no  action,' 
i.  e.,  the  idea  of  the  binding  force  of  a  promise  is  quite 
foreign  to  ancient  times.  The  legally  enforceable  char- 
acter of  a  promise,  i.  e.,  its  actionability  ("actio"),  is 
conditioned  by  the  fact  that  the  creditor  performed 
some  act  for  or  gave  something  to  the  debtor.  The  obli- 
gating reason  of  the  promise  depends  upon  the  act  ("res") 
of  the  other  party ;  no  one  promises  who  does  not  have 
to,  namely,  in  order  to  get  something  himself.  Every 
promise  is  therefore  a  promise  of  a  subsequent  act  by 
reason  of  a  previous  act  that  was  received,  or  is  juris- 
tically   assumed   to    have    been   received.     The  word 

^  D.  2.  14.  7  §  4,  "  .  .  .  nuda  pactio  obligationem  non  parit."  ib.  7 
§  5,  "  .  .  .  regula:  ne  ex  pacto  actio  nascatur."  Paul.  Sent.  Rec. 
II,  14.  1,  "ex  nudo  pacto  inter  cives  Romanes  actio  non  nascitur." 


§5]        SOCIAL  MECHANICS  — COERCION        203 

without  "res"  is  an  empty  word  which  obligates  no  one; 
it  acquires  a  binding  force  only  through  the  substantial 
element  of  possession  in  the  person  giving  it. 

This  is  the  ancient  Roman  conception  which  controlled 
for  centuries  the  history  of  the  development  of  Roman 
obligation,  and  which  is  testified  to  in  language  the 
moment  we  make  our  first  entry  into  this  sphere.  Ety- 
mology, that  guardian  of  the  primitive  popular  concep- 
tions, sketches  ancient  Roman  obligation  for  us  in  the 
following  manner. 

A  debtor  ("debitor")  is  he  who  has  something  from 
another  ("de-habere"  —  "debere,"  "debitor");  creditor 
("creditor")  is  he  who  has  given  something  ("duere"  — 
"dare,"  "creduere,"  "creditor");  a  debt  is  money  which 
was  given  to  the  debtor  ("aes  alienum").  All  three 
concepts  therefore,  —  debtor,  creditor,  debt,  —  point, 
in  accordance  with  their  linguistic  form,  back  to  the  idea 
of  having  something  from  another. 

From  this  realistic  point  of  departure  Roman  obliga- 
tion now  develops  in  such  a  way  that  it  gradually  over- 
comes the  substantial  element  of  "res,"  until  it  finally 
has  freed  itself  from  it  entirely,  and  given  rise  to  mere 
contract  as  such. 

In  order  that  the  reader  may  understand  the  following 
outline  of  Roman  contracts,  which  proposes  to  arrange 
them  in  the  order  of  their  conceptual  and  historical 
sequence,  I  will  preface  the  following  observation  on 
the  terms  to  be  used. 

A  business  transaction  which  is  carried  out  by  an 
immediate  performance  on  both  sides,  I  call  bilateral  real 
business;  a  transaction  in  which  the  performance  of 
one  party  comes  first,  while  the  consideration  does  not 
follow  at  once,  but  is  only  promised,  I  call  unilateral 
real  business ;  a  transaction  in  which  neither  party  per- 
forms any  act  forthwith  but  each  only  promises,  I  call 


204  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

bilateral  promissory  business;  and  a  transaction  in 
which  only  one  party  promises  without  any  consideration 
being  promised  or  granted  upon  the  other  side,  I  call 
unilateral  promissory  business.  If  besides  I  add  that 
unilateral  real  business  occurs  in  Roman  law  in  a  double 
form,  viz.,  with  effective  and  imaginary  previous  per- 
formance (merely  juristically  assumed),  we  have  the 
outline  of  obligatory  business  transactions,  which  in  my 
opinion  contains  the  historical  gradation  of  Roman 
obligation. 

I.  First  Stage.  — -Bilateral  Real  Business.  The 
simplest  form  of  contract,  economically  as  well  as  juris- 
tically, is  contract  of  exchange,  and  salowith  immediate 
execution  (cash).  In  ancient  Roman  law  this  stage 
is  represented  solely  by  solemn  sale  ("mancipatio"). 
There  is  no  special  form  peculiar  to  exchange ;  the  stage 
of  exchange  seems  already  superseded  in  the  law  of 
contract. 

II.  Second  Stage.- — Effective  Unilateral  Real  Busi- 
ness. The  first  demonstrable  case  of  obligation  to 
a  future  act  in  the  old  Roman  law  is  the  solemn  loan, 
known  as  "nexum,"  distinguished  by  the  immediate 
personal  execution  which  belongs  to  it.  We  might  call 
it  the  promissory  note  of  the  ancient  Roman  world.  The 
obligating  power  of  the  word,  which  here  as  everywhere 
in  Roman  law  the  person  must  speak  who  is  to  receive 
the  right  by  the  act,  depends  upon  the  antecedent  act 
on  his  part. 

With  this  solemn  form  are  connected  the  formless  loan, 
and,  in  the  further  course  of  development,  the  other  real 
contracts,  named  as  well  as  unnamed.  All  of  these  hold 
firmly  to  the  ancient  Roman  idea  that  the  debtor  is 
not  obligated  by  a  word,  whether  his  own  or  another's, 
but  by  the  combination  of  word  and  performance.  For 
this  reason,  only  such  individual  is  entitled  to  an  action 


§5]        SOCIAL  MECHANICS— COERCION        205 

in  one  of  the  unnamed  contracts  who  has  carried  out  his 
part  of  the  contract ;  before  this  is  done  the  contract  is 
not  binding  on  either  party,  the  word  only  acquiring 
force  when  a  real  performance  is  joined  to  it. 

III.  Third  Stage.  —  Imaginary  Unilateral  Real  Busi- 
ness. Obligation  develops  further  from  this  basis  by 
keeping  formally  to  it,  but  in  reality  freeing  itself  there- 
from. This  takes  place  first  in  loan  ("nexum").  The 
old  effective  payment  (sale  "per  aes  et  libram")  is  trans- 
formed into  a  mere  imaginary  act,  so  that  one  who  had 
not  received  anything  in  reality  could  establish  a  debt 
by  means  of  an  imaginary  loan  in  which  the  giving  was 
limited  to  a  piece  of  brass.  With  this  was  connected 
the  "literal"  contract,  in  which  a  sum  is  charged  on  both 
sides  as  "given"  and  "received,"  while  there  was  no 
need  of  actual  giving.  As  in  the  former  case  the  real  act 
was  replaced  by  an  imaginary  act,  so  it  is  replaced  here 
by  acknowledgment;  a  process  of  the  same  kind  as 
occurs  in  the  history  of  the  bill  of  exchange,  in  the 
substitution  of  the  actual  payment  of  the  value  by  the 
value  clause  ("value  received").  The  last  step  in  this 
direction  is  represented  by  the  verbal  contract  of  Roman 
law.  In  form  it  contains  not  the  slightest  reference  to 
a  previous  performance  supposed  to  have  taken  place, 
which  seems  to  have  been  altogether  eliminated  in  it, 
though  according  to  the  juristic  idea  it  lay  at  the  basis. 
Verbal  contract  may  be  defined  as  a  receipt  of  value 
received  with  accompanying  promise  of  a  subsequent 
act  on  one's  own  part.  The  verbal  contract  is  the  last 
off-shoot  of  the  old  Roman  concept  of  obligation,  and 
appears  only  as  an  artificial  operation.  In  it  the  force 
of  the  original  idea  that  an  obligation  to  an  act  can  be 
established  only  by  a  corresponding  antecedent  act,  is 
already  to  such  a  degree  weakened  as  to  have  become 
simply  an  embodiment  of  the  abstract  power  of  obliga- 
tion of  the  will. 


206  THE   CONCEPT   OF   PURPOSE    [Ch.  vill 

IV.  Fourth  Stage. — Bilateral  Promissory  Business. 
The  obligating  force  of  a  promise  as  such,  without  the 
support  of  a  previous  act,  formally  certified  or  merely 
assumed,  as  was  the  case  historically  in  verbal  contract, 
comes  to  actual  recognition  only  in  the  four  consensual 
contracts  of  Roman  law.  Of  these,  however,  only 
three,  viz.,  sale,  lease  and  partnership,  belong  to  the 
category  of  bilateral  promissory  business;  whereas  the 
fourth,  "mandatum,"  comes  under  that  of  unilateral 
promise  (see  below).  In  comparison  with  the  other 
forms  of  obligation  of  Roman  law,  they  appear  as  highly 
limited  exceptional  cases,  which  were  taken  over  into 
Roman  law  from  international  private  law  ("jus  gen- 
tium"), and  do  not  therefore  by  any  means  justify  the 
conclusion  that  the  old  Roman  conception  was  super- 
seded in  them  and  abolished  in  principle.  Neither  the 
Roman  people  nor  even  Roman  jurisprudence  ever  rose 
to  the  thought  that  consensus  as  such  has  in  it  a  juris- 
tically  binding  force.  Nowhere  does  the  latter  give 
the  slightest  hint  that  this  corresponds  really  to  the 
nature  of  the  thing;  never  does  it  make  an  attempt  to 
extend  those  four  exceptional  cases.  On  the  contrary, 
it  guards  anxiously  the  old  boundaries  and  warns  against 
overstepping  them  as  a  serious  danger.^" 

V.  Fifth  Stage.  —  Unilateral  Promissory  Business. 
This  is  the  last  step  in  the  development  of  actionable 
promises  which  Roman  law  took,  and  it  is  perhaps  the 
most  interesting  of  all.  Whereas  in  all  previous  stages 
obligation  remains  in  the  service  of  the  purposes  of 
commerce  and  hence  of  bilateral  egoism,  it  makes  itself 
free  from  it  in  this  stage,  and  rises  to  the  thought  of 
benevolence  and  self-denial;  or  to  speak  differently, 
liberal  or  gratuitous  contracts  (p.  76)  are  joined  to  the 
onerous  as  actionable. 

1°  D.  2.  14.  7  §  5.  "...  hoc  non  valebit,  ne  ex  pacto  actio  nas- 
catur,"  a  turn  which  is  repeated  four  times  in  this  passage. 


§5]        SOCIAL  MECHANICS— COERCION        207 

These,  too,  like  onerous  contracts  become  possible  in 
two  forms;  in  the  form  of  immediate  performance,  and 
in  the  form  of  promise.  The  object  of  both  may  be  the 
permanent  cession  of  property  value  (donation,  alms),  or 
temporary  service  by  object  or  person. 

We  now  have  the  formula  required  to  embrace  the 
various  cases  and  forms  of  liberal  contracts,  and  at  the 
same  time  a  standard  of  measurement  which  we  may 
apply  to  every  positive  law.  When  I  apply  it  to  the 
Roman  law,  I  do  so  in  the  first  place,  naturally,  in 
order  to  complete  the  development  just  outlined  of  the 
concept  of  promise  in  Roman  law.  But  here,  too,  I  am 
not  so  much  concerned  about  Roman  law  as  about  the 
advancement  of  the  knowledge  of  the  law  in  general, 
and  for  this  reason  I  do  not  limit  myself  to  literal  promise 
but  combine  with  it  a  consideration  of  liberal  real  per- 
formance in  the  conviction  that  only  by  this  means  will 
the  peculiar  significance  and  function  of  the  former  be 
manifested  with  the  greatest  clearness. 

(1)  Liberal  Real  Performance.  A  gratuitous  service 
is  juristically  a  purely  indifferent  thing;  as  such  it  gives 
rise  to  no  question  of  right,  and  therefore  science  had 
no  reason  to  stamp  it  with  the  seal  of  a  legal  concept." 

Gratuitous  delivery  of  a  thing  for  use,  however, 
touches  law  at  least  in  so  far  as  it  contains  the  obliga- 
tion to  return  the  object.  To  enforce  it  Roman  law  has 
the  "interdictum  de  precario,"  the  "condictio  certi"  in 
loan  without  interest,  and  the  "actio  commodati." 

The  effect  by  which  a  gift  makes  itself  felt  in  law  con- 
sists in  the  transfer  of  ownership,  a  result  which  it 
shares  with  each  onerous  transaction  in  transfer  of  owner- 
ship.    It  is  not  therefore  necessary  for  the  jurist  to  use 

"  Juristic  questions  can  be  connected  with  It  only  by  the  accession 
of  special  circumstances;  forexample,  "dolus,"  erroneous  assumption 
of  obligation,  D.  12.  6.  26  §  12,  or  "negotiorum  gestio." 


208  THE   CONCEPT  OF   PURPOSE    [Cn.  Vlil 

the  concept  of  gift  in  order  to  explain  it.  To  speak  in 
juristic  terms,  gift  comes  into  consideration  only  as  the 
motive  of  transfer  of  ownership.  The  difference  be- 
tween paid  and  gratuitous  transfer  of  ownership  is  not 
juristic  in  its  nature  but  economic;  for  gift  is,  from  the 
juristic  point  of  view,  completely  covered  by  the  concept 
transfer  of  ownership.  This  Roman  law  also  recognizes 
perfectly  in  reference  to  "traditio."  The  theory  of 
"traditio"  knows  no  difference  between  a  paid  and  a 
gratuitous  transaction.  The  case  was  quite  different, 
however,  in  that  form  of  transaction  which  according  to 
the  old  Roman  law  transferred  Roman  property  only, 
i.e.,  such  as  may  be  prosecuted  by  vindicatory  proce- 
dure,^^  g_  g,^  in  "mancipatio"  of  "res  mancipi."  The  only 
reason  stated  which  may  determine  the  owner  to  a 
transfer  of  ownership  is  sale.  For  the  transfer  of  a  "res 
mancipi"  by  way  of  gift  the  old  law  had  no  form,  i.e., 
the  idea  of  gift  is  not  given  legal  expression  to  —  an 
ancient  Roman  was  not  in  the  habit  of  making  gifts. ^' 
If,  nevertheless,  one  desired  to  do  so,  he  could  do  this 
only  by  wrapping  his  gift  in  the  form  of  "mancipatio," 
imaginary  sale.  The  importance  of  this  phenomenon 
he  only  can  fail  to  recognize  who  in  the  forms  of  the 
law  sees  mere  forms,  and  not  the  expressions  of  real 
ideas.     For  him  who  agrees  with  me  in  the  opposite 

12  The  establishment  of  this  view  I  must  reserve  for  another  place 
(the  second  division  of  the  third  part  of  my  "Geist  des  romischen 
Rechts").  The  effect  of  Roman  property  ("dominium  ex  jure 
quiritium")  consisted  in  "vindicatio."  Its  transference  to  "res  nee 
mancipi"  did  not  come  till  later.  In  ancient  times  its  protection 
was  restricted  to  "act.  furti,"  which  was  directed,  however,  not 
only  against  the  thief,  but  also  against  the  receiver  of  stolen  goods 
(Gaj.  Ill,  186:  "furtum  conceptum"). 

"So  Polybius  literally,  32.  12.  9,  where  he  tells  of  the  generosity  of 
P.  Scipio  toward  his  mother:  "Unheard  of  in  Rome,  for  in  this  city 
no  one  gives  away  of  his  own  accord  any  of  his  belongings  to  another 
as  a  present." 


§5]        SOCIAL  MECHANICS— COERCION        209 

opinion,  "mancipatio"  contains  the  proposition  that 
the  most  ancient  Roman  law  knows  no  gratuitous  trans- 
fer of  ownership,  but  only  paid. 

Thus,  gift  was  forced  by  the  law  itself  to  conceal  itself 
in  the  form  of  another  transaction,  and  pretend  to  be 
what  it  was  not  in  reality.  The  fact  that  we  meet  the 
same  phenomenon  also  in  other  laws  at  a  lower  stage  of 
development,^'*  leaves  no  doubt  possible,  according  to  my 
opinion,  of  the  reason  of  this  phenomenon.  It  was  not 
the  limitation  of  the  legal  form,  which  was  adapted  only 
to  the  most  important  cases  of  transfer  of  ownership, 
but  the  limitation  of  human  egoism,  which  had  not  yet 
been  able  to  rise  to  the  idea  of  gift. 

This  ancient  national  conception  of  gift  continued  to 
influence  for  many  centuries  the  attitude  of  legislation 
and  jurisprudence.  In  forms  of  law  it  shows  itself  in 
the  limiting  determinations  of  the  "lex  Cincia,"  and  in 
the  prescription  of  "insinuatio"  of  the  time  of  the  em- 
perors. In  juristic  theory  it  discovers  itself  in  traces 
which   will   be  indicated   later.     Even  in   the  classical 

^*  So,  for  example,  in  Lombard  law  in  which  it  was  a  fixed  legal 
rule  that  a  gift,  especially  when  conditional  on  the  death  of  the 
giver,  was  valid  only  if  the  donee  handed  over  to  the  donor  a  com- 
pensation ("Laungild"- — ^  "Lohngeld").  Stobbe,  "Reurecht  und 
\'ertragsschluss  nach  alterem  Deutschen  Recht,"  (Leipzig,  1876), 
II,  p.  16.  Two  other  examples,  which  I  owe  to  Prof.  Ehrenberg, 
are  "manumissio  per  denarium"  according  to  the  Prankish  law,  in 
which  the  slave  about  to  be  manumitted  offered  a  "denarium"  for 
his  freedom,  which  the  master  (in  order  to  indicate  the  character 
thereof  as  a  merely  imaginary  payment)  jerked  out  of  his  hand  with 
a  fillip,  and  the  establishment  of  a  relation  of  dependence  (whether 
one  of  complete  ownership  or  of  lesser  dependence,  for  example,  a 
relation  of  vassalage)  by  means  of  an  imaginary  consideration 
(designated  in  the  sources  as  "pretium").  According  to  Turkish 
law  gift,  except  where  there  is  a  relation  of  kinship,  becomes  irrevo- 
cable only  through  a  gift  in  return.  Von  Tornauw,  "  Das  Mosle- 
mitische  Recht,"  (Leipzig,  1855),  p.  145. 


210  THE   CONCEPT   OF   PURPOSE    [Cn.  viii 

period  of  Roman  jurisprudence  we  meet  with  a  concep- 
tion of  gift  which  would  do  honor  to  the  most  sober 
egoism:  gift  is  a  sort  of  exchange;  one  makes  a  gift  in 
order  to  receive  a  gift  in  return.^*  The  only  point  where 
liberality  comes  to  the  surface  within  the  law  is  the  testa- 
ment. But  let  us  not  deceive  ourselves  about  the  true 
worth  thereof.  The  liberality  of  the  last  will  and  testa- 
ment is  psychologically  far  remo\-ed  from  liberality 
among  living  persons.  What  one  donates,  he  sacrifices, 
he  takes  away  from  himself;  what  he  gives  in  his  last 
will,  he  gives  only  because  he  cannot  keep  it  himself; 
or  more  correctly,  he  does  not  give  at  all,  but,  as  language 
fittingly  expresses  it,  he  "leaves,"  i.e.,  he  leaves  it  behind 
because  he  must.  If  he  does  not  dispose  of  it,  it  falls 
to  the  legal  heir  without  his  assistance;  the  testament 
only  gives  him  an  opportunity  of  putting  other  persons 
in  his  place.  The  value  of  such  generosity  must  not  be 
put  very  high.  It  happens  not  rarely  that  an  incor- 
rigible miser,  who  had  not  the  smallest  gift  to  spare  dur- 
ing his  lifetime  for  charitable  purposes,  relatives  and 
friends,  bequeaths  the  richest  legacies  and  makes  the 
most  splendid  foundations.  These  bequests  may  be 
very  valuable  for  the  beneficiaries  and  for  society,  but 
psychologically  they  have  not  the  value  of  a  gift:  —  the 
gift  of  the  cold  hand  is  compatible  with  an  ice  cold 
heart ;  it  is  not  a  gift  of  one's  own,  but  from  the  purse 
of  the  legal  heir.'^  Only  the  gift  of  the  warm  hand  feels 
warm. 

Such  is  testamentary  liberality  in  its  true  shape.  But 
even  the  paltry  residue  of  liberality  which  still  remains 

1^  D.  5.  3.  25  §  11,  "  .  . .  ad  remuneranclum  sibialiquem  naturaliter 
obligaverunt,  velut  genus  quoddam  hoc  esse  permutationis." 

^*  Its  psychological  character  is  very  well  described  by  the  jurist  in 
D.  39.  6.  1.  pr.  "...  habere  se  vult.quam  eum,  cui  donat,  magisque 
eum,  cui  donat,  quam  heredem  suum." 


§5]        SOCIAL  MECHANICS— COERCION        211 

after  this  analysis  was  too  much  for  the  Romans.  Law 
had  no  independent  form  for  it  in  which  it  could  appear 
as  such,  but  they  borrowed  for  it  the  forms  of  business 
intercourse.  For  the  heir  they  borrowed  the  form  of 
"mancipatio"  —  his  institution  is  made  in  the  form  of  a 
purchase  of  the  estate.  The  heir,  or  some  other  person 
in  his  place  ("familiae  emptor"),  buys  the  estate.  For 
the  legatee  they  borrowed  the  form  of  "legatum  per  dam- 
nationem"  (the  obligation  on  the  part  of  the  heir  to 
transfer  to  the  legatee  the  quiritarian  ownership  in  a 
thing),  i.e.,  of  the  strict  form  of  debt,  of  the  debt  of  loan 
("nexum").  Thus  we  may  say  that  the  ancient  Roman 
law  possesses  no  particular  form  specially  intended  for 
liberality,  either  as  "inter  vivos,"  or  testamentary.  It 
employs  for  the  purpose  the  forms  of  business  intercourse. 
For  gift  it  uses  "mancipatio";  for  a  promise  of  gift, 
"stipulatio,"  verbal  contract  (see  below);  for  institu- 
tion of  an  heir,  "mancipatio";  for  a  legacy,  "nexum." 

(2)  Liberal  Promise.  A  liberal  promise  becomes  action- 
able in  a  manner  quite  different  from  an  onerous  promise. 
The  actionability  of  the  latter  is  a  requirement  of  com- 
merce; on  the  other  hand,  that  a  liberal  promise  be 
actionable  is  a  thing  not  at  all  demanded  from  the  stand- 
point of  business  —  whether  it  be  admitted  or  rejected 
by  the  legii'itor,  trade  and  commerce  will  not  feel  it. 
Juristic  formalism  alone,  which  is  attached  solely  to  the 
abstract  concept  of  promise,  can  see  a  contradiction  in 
the  fact  that  the  same  legislator  who  grants  the  power 
of  enforcement  in  onerous  promise  denies  it  in  liberal. 

The  possibility  and  necessity  of  distinguishing  be- 
tween onerous  and  liberal  promise,  which  is  here  empha- 
sized, is  confirmed  in  the  fullest  measure  by  the  Roman 
law.  For  the  former  it  had  long  possessed  a  rich  supply 
of  forms;  whereas,  for  the  latter,  it  had  not  a  single  form. 
The  first  case  in  which  it  resolved  to  equip  liberal  promise 


212  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

also  with  legal  effects,  was  that  of  a  promise  of  gratuitous 
service  ("mandatum") ; '^  and  this,  too,  happened  in 
such  a  manner  as  plainly  to  show  that  the  Romans  were 
clearly  aware  of  the  difference  between  the  two  species 
of  promise,  and  little  inclined  to  abolish  it  in  favor  of 
any  abstract  concept  of  promise.  He  who  hires  out  his 
services  is  bound  to  the  contract,  but  the  mandatory 
who  performs  them  gratuitously  can  withdraw  if  he 
has  reasons, ^^  the  consideration  that  it  is  a  courtesy  to 
which  he  pledged  himself  mitigating  the  strictness  of 
the  pledge.  But  the  courtesy  in  this  case  stands  upon 
a  peculiar  footing;  it  is  still  partly  in  the  sphere  of 
business;  and  it  is  just  in  this  circumstance  of  the  semi- 
commercial  character  of  "mandatum"  that  I  see  the 
reason  which  made  it  actionable.  Even  in  a  pure  busi- 
ness negotiation,  which  has  as  its  impulse  not  benevo- 
lence but  egoism,  regard  for  that  good  understanding 
with  the  other  party,  which  is  demanded  by  self-interest, 
may  require  that  the  one  should  take  an  order  from  the 
other  without  asking  to  be  paid  for  it.  This  is  not  a 
service  of  a  friend  in  the  real  sense  of  the  term,  but  of 
that  peculiar  variety  of  it  which  the  business  world  desig- 
nates as  a  business  friend.  In  services  of  greater  impor- 
tance the  Roman  gave  and  expected  a  honorarium,  and 
jurisprudence  saw  so  little  that  was  ofifensive  to  the 
nature    of    the    relation,    that    in  case    of    a    previous 

"In  the  seventh  century  of  the  city  at  the  earliest.  See  my 
"Schuldmoment  im  Romischen  Privatrecht"  (Giessen,  1867),  p.  34, 
35,  ("Vermischte  Schriften,"  Leipzig,  1879,  p.  192).  A  very  special 
case  is  presented  in  the  promise  of  gratuitous  service  made  on  oath 
by  the  freed  slave  at  the  moment  of  receiving  his  freedom.  Its 
actionability  was  based  on  the  presence  of  a  consideration,  viz.,  the 
freedom  which  is  granted  to  him,  D.  38.  2.  1.  pr.  "ad  remuneran- 
diim  tam  grande  beneficium";   12.  6.  26  §  12  "  .  .   .    natura  debet.'' 

«D.  3.  27  §  11,  22  last  §;  17.  1.  23-25.  Similarly  the  "sequester," 
16.  3.  5  §2,  and  the  "arbiter,"  4.  8.  9  §4,  5;  10;   11.  pr.;  15;   16.  pr. 


§5]        SOCIAL  MECHANICS— COERCION        213 

stipulation  concerning  it,  it   even  declared  the    "actio 
mandati"  as  admissible.'^ 

A  promise  of  temporary  gratuitous  cession  of  an  object 
or  of  capital  was,  according  to  my  opinion,  not  binding 
even  when  clothed  in  the  form  of  "stipulatio,"  verbal 
contract.^''  Only  the  promise  of  a  gift  was  given  by  law 
the  force  of  obligation;  but  it  was  necessary  for  this 
purpose  to  clothe  it  in  the  business  form  of  verbal  con- 
tract, just  as  the  gift  of  an  object  in  "res  mancipi"  had 
to  find  refuge  in  the  form  of  "mancipatio"  (p.  208). 
That  the  reason  for  the  want  of  a  proper  form  lies  here 

^' D.  17.  1.  6.  pr.  "Si  remunerandi  causa  honor  intervenit,  erit 
mandati  actio."  The  business  character  of  "mandatum"  cannot  be 
expressed  more  clearly  than  is  done  here.  A  friend  does  not  stipulate 
for  a  compensation  for  a  service,  and  there  can  be  no  action  for  con- 
sideration in  an  essentially  gratuitous  contract.  One  must  have  a 
very  imperfect  idea  of  the  Roman  "procuratores"  to  believe  that 
they  submitted  to  all  the  cares  and  hardships  of  their  office  out  of 
mere  benevolence.  The  contrast  between  the  "procurator"  and 
the  friend  is  expressly  brought  out  in  17.  1.  10  §  7:  "qui  non  animo 
procuratoris  intervenit,  sed  affectionem  amicalem  promisit  .  .  . 
mandati  ?JOMteneri".  Compare  with  this  the  opposite  case  in  3.  5.  42: 
"rogalti  .  .  .  mandatu,"  and  for  "act.  mandati  contraria,"  see 
16.3.1  §  14  "  .  .  .  suaseris  .  .  .  mandasti,"  and  50.  14:.  2,  "monstrat 
niagis  nomen  quam  mandat." 

2°  The  Roman  judge  could  not  give  judgment  for  specific  perform- 
ance, but  only  for  the  interest.  But  in  such  a  case  he  would  scarcely 
have  recognized  its  "honesta  causa"  (D.  47.  2.  76  §  1).  I  am  inclined 
to  apply  to  this  the  saying  of  22.  1.3  §  4,  "non  sine  rubore  desidera- 
bitur."  See  also  the  statement  in  43.  26.  14,  "  .  .  .  nullo  eo  nomine 
actio  civilis  est,  magis  enim  ad  donationes  et  beneficii  causam,  quam 
ad  negotii  contracti  spectat  precarii  condicio,"  and  the  manner  in 
which  the  jurist  in  39.  5.  27  upholds  the  gratuitous  permission  to 
use  a  dwelling  in  the  special  case,  "officium  quadam  mercede  remunera- 
tum  Regulum."  Of  "precarium"  we  know  that  the  agreement  it 
should  last  a  definite  period  was  not  made  effective  even  by  the 
fulfilment  of  the  precarium,  and  the  defendant  was  not  granted  a 
plea  against  earlier  notice  to  vacate,  43.  26.  12,  "sed  nulla  vis  est 
huius  conventionis,  ut  rem  alienam  invito  domino  possidere  liceat." 


214  THE   CONCEPT  OF   PURPOSE    [Ch.  viii 

also  in  an  objective  disinclination  to  the  business  itself, 
follows  from  the  plea  granted  by  the  "lex  Cincia"  in 
both  cases  to  a  business  irreproachable  in  form.  In 
consequence  a  special  form  for  gift  in  the  law  of  things 
as  well  as  in  the  law  of  obligations  is  not  found  in  ancient 
Roman  law. 

Not  until  Justinian  does  the  promise  of  gift  attain  to 
independence  of  form.  The  necessity  of  clothing  it  in 
the  business  form  of  verbal  contract,  which  was  in  force 
till  then,  was  abolished  by  him,  and  the  simple,  formless 
contract  ("pactum")  in  which  gift  presents  itself  as 
that  which  it  is,  is  put  in  its  place.  Roman  law  had 
therefore  existed  over  a  thousand  years  without  granting 
juristic  recognition  to  the  promise  of  gift  as  such;  a 
fact  so  significant  for  the  Roman  conception  of  gift  that 
it  needs  no  further  commentary. 

What  determined  Justinian  to  break  with  it?  Accord- 
ing to  my  opinion  it  was  the  influence  of  the  Christian 
conception.-^  We  need  only  cast  a  glance  at  the  mass  of 
charitable  foundations  named  in  the  constitutions  of 
the  Christian  emperors  to  be  convinced  of  the  measure 
in  which  Christianity,  however  high  or  low  we  may  in 
general  estimate  its  ethically  rejuvenating  influence  upon 
the  decadent  Roman  Byzantine  world,  undeniably  exer- 
cised a  morally  ennobling  effect  at  least  in  one  direction. 
We  speak  of  its  stimulating  influence  upon  beneficence 
and  liberality.  It  is  only  with  the  coming  of  Christianity 
that  the  virtue  of  charity  arose  in  history  to  the  rank 
of  a  factor  socially  influential  and  significant.  Not  only 
did  the  beautiful  calling  of  mitigating  the  misery  of 
entire  classes  of  society  fall  to  its  lot,  —  a  social  problem 
which  commerce  guided  by  pure  egoism  leaves  every- 

21  The  Constitution  in  which  he  makes  this  disposition  mentions 
expressly  the  Christian  institutions,  Cod.  8.  54.  35  §  5,  "  .  .  .  piis 
actibus  vel  reHgiosis  personis." 


§5]        SOCIAL  MECHANICS— COERCION        215 

where  unsolved,  —  but  at  the  same  time  the  world 
mission  to  assist  in  laying  the  foundations  of  the  Christian 
Church  by  supplying  the  requisite  economic  means. 
To  make  this  possible,  Christianity  had  to  overcome  the 
egoism  of  Roman  law.  And  it  has  a  right  to  boast  of 
it,  —  it  is  through  Christianity  alone  and  by  means  of 
Christian  doctrines  that  beneficence  and  love  have  come 
to  their  full  right  in  legislation  as  well  as  in  life. 

Roman  law  knew  of  two  cases  only  in  which  gratuitous 
promise  was  equipped  from  ancient  times  with  binding 
force.  These  were  "votum"  and  "pollicitatio,"  a  vow"^"^ 
to  the  gods  and  to  the  community.  But  even  here, 
when  in  contact  with  the  highest  that  the  Roman  knows, 
his  deity  and  his  fatherland,  he  does  not  fail  to  betray 
the  trait  of  egoism ;  does  not  forget  to  make  his  account 
with  both.  "Votum"  is  for  him  only  a  sort  of  nameless 
real  contract  with  the  deity.^^  It  is  not  a  pure,  dis- 
interested promise  of  gift,  but  an  act  for  the  sake  of  a 
consideration;  its  binding  force,  too,  is  supported  by  the 
"res."  And  "pollicitatio"  also  does  not  obligate  without 
further  ado  as  pure  liberality. ^^  It  is  in  force  only  when 
motived  by  a  special  reason  ("justa  causa").  This  may 
be  either  because  the  community  has  given  or  is  to  give 
something, ^^  or  (and  here,  judging  from  the  language, 

^2  Liberality  in  favor  of  a  purpose,  in  contradistinction  to  that  in 
favor  of  a  person,  viz.,  gift. 

23  According  to  the  formula,  "do,  ut  facias,"  help  me,  and  I  will 
give  you!  To  be  sure,  this  is  nowhere  expressly  said,  but  it  can  be 
inferred  with  certainty  according  to  my  opinion  from  the  many 
{ormulae  in  Brissonius,  "De  Vocibusac  Formulis,"  lib.  I,  c.  159,  fl. 
All  "vota"  are  conceived  conditionally. 

^*  D.  50. 12.  1  §  5,  "qui  non  ex  causa  reipublicae  pecuniam  pollicen- 
tur,  liberalitatem  perficere  non  coguntur." 

^  D.  50.  12.  1  §  1.  "Si  quidam  ob  honorem  promiserit  decretum  sibi 
vel  decernendum  vel  ob  aliam  justam  causam,  tenebitur  ex  pollicita- 
tione."     In  forming  the  expression  "pollicitatio,"  they  had  in  mind 


216  THE   CONCEPT   OF   PURPOSE    ICh.  Vlli 

we  probabK'  have  a  later  extension)  on  account  of  a 
heavy  misfortune  which  befell  the  community,  or  when, 
a  beginning  having  been  made  of  carrying  the  promise 
into  execution,  it  thereby  becomes  a  reality  and  the 
mere  word  has  assumed  the  form  of  a  deed. 

I  add  a  third  case  to  these  two,  but  again  for  the  pur- 
pose of  stripping  it  of  the  appearance  of  liberality  with 
which  it  is  clothed.  It  is  the  promise  of  "dos."  The 
regular  form  of  it  was,  until  late  in  the  time  of  the  em- 
perors, the  verbal  contract.  It  therefore  took  on  a 
business  form,  and  the  Roman  jurists  maintain  the  busi- 
ness character  of  "dcs"  (in  contradistinction  to  gift) 
even  for  the  man  who  receives  it.  This  they  justify  b\' 
the  statement  that  the  man  has  to  bear  the  burdens  of 
marriage,  and  the  purpose  of  the  "dos"  is  to  give  him 
such  contribution  as  is  due  from  the  wife.-^  At  the  same 
time  there  was  unilateral  promise  ("dotis  dictio")  in 
certain  cases;  the  same  form,  therefore,  as  in  "votum" 
and  "poUicitatio."  But  the  business  element  in  contra- 
distinction to  the  purely  liberal  asserts  itself  here  also 
in  the  fact  that  this  form  was  limited  to  the  assumption 
of  an  antecedent  debt;^  and  thus  here  also  it  was  the 
"res"  which  served  as  the  basis  of  the  promise.     Not 

the  case  of  an  antecedent  performance  on  the  part  of  the  community. 
"Polliceri"  is  "pote"  (strong,  powerful)  "liceri"  (to  offer,  to  bid), 
"poUicitator"  is  he  who  has  made  the  highest  bid  to  the  community 
for  something  which  it  grants  him  (honor).  It  is  therefore  again 
real  contract,  "do,  ut  facias."  The  obh'gation  undertaken  by  the 
bidder  is  actually  designated  {ibid.  6.  pr.)  as  "aes  alienum,"  and  in 
3.  pr.  as  "quasi  debitum." 

^  In  place  of  all  other  passages  I  shall  name  only  D.  44.  7.  19, 
where  the  "lucrativa  causa"  of  "dos"  is  expressly  rejected  and  the 
idea  of  consideration  is  emphasized. 

^  "Dotis  dictio"  can  be  made  by  the  wife,  by  her  debtor,  or  her 
father,  Ulp.  V'l,  2,  i.e.,  by  persons  who  are  already  obligated  either 
"civiliter"  or  "naturaliter,"  and  hence  do  not  give  it  as  a  gift. 


§5]       SOCIAL  MECHANICS  — COERCION        217 

until  the  Christian  period  is  the  promise  of  a  "dos"  as 
such,  i.  e.,  without  the  business  form  of  verbal  contract, 
recognized  by  Theodosius  and  Valentinian  as  actionable. 

We  have  now  come  to  the  end,  and  after  the  long 
digression  which  we  permitted  ourselves,  we  now  return 
to  the  path  which  we  followed  earlier.  The  point  where 
we  left  it  was  the  question  of  compulsive  coercion  (p.  198), 
and  the  reason  we  quit  it  was  in  order  to  get  a  firm 
historical  point  of  support  for  this  question.  The  result 
with  which  we  return  consists  in  the  recognition  that 
the  impelling  motive  in  obligation  is  not  an  abstract 
idea  of  will,  or,  which  is  the  same  thing,  a  formal  concept 
of  promise,  but  the  practical  purpose.  But  the  concept 
of  purpose  is  highly  relative;  its  practical  form  in  law 
is  conditioned  and  determined  by  that  which  is  felt  as 
a  condition  and  aim  of  life.  And  this  too  not  by  a  par- 
ticular and  peculiarly  formed  individual,  but  by  the 
typical  individual  of  this  definite  period,  i.  e.,  by  the 
whole  of  society.  To  secure  this  content,  these  purposes, 
answers  to  the  interests  of  everyone,  for  without  them 
no  one  can  live ;  and  in  granting  them  the  form  of  obli- 
gation in  order  to  secure  them,  the  law  only  protects  the 
conditions  of  life  of  all  society. 

We  have  not  yet,  however,  advanced,  in  the  develop- 
ment so  far  of  our  discussion,  to  the  concept  of  law.  We 
are  still  occupied  with  the  concept  that  is  introductory 
to  it,  viz.,  the  individual  coercion  demanded  by  the  pur- 
pose of  the  realization  and  security  of  the  necessary 
conditions  of  life.  But  everything  we  have  found  so 
far  leads  us  inevitably  to  the  law.  It  presupposes  the 
juristic  formation  of  the  entire  content  of  purpose 
developed  so  far,  which  the  individual  would  have  to 
pursue  by  his  own  power  if  we  imagine  him  thrown 
upon  his  own  resources.  Every  one  of  the  purposes 
which  he  feels  according  to  the  general  standard  above 


218  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

given  as  essential  to  life,  demands  coercion.  Such 
demand,  however,  presupposes  law  as  systematized 
coercion. 

§  6.  TJie  Self -regulation  of  Coercion.  —  Partnership. 
^^'e  have  made  the  attempt  in  what  has  preceded  to 
go  back  to  the  ultimate  motives  of  coercion  in  civil 
society.  Now,  whatever  form  the  State  may  give  to 
it,  however  extended  may  be  the  application  which  it 
makes  of  it  for  its  own  purposes,  the  ultimate  germ  of 
coercion  as  a  social  institution,  the  beginnings  of  its 
foundation  as  an  organization,  lies  in  the  individual; 
the  purpose  of  existence  of  the  individual  cannot  be 
realized  on  earth  without  coercion.  It  is  the  first,  and 
in  it  lies  therefore  the  primitive  germ  of  law,  as  legal 
force  (p.  187). 

But  by  showing  that  coercion  is  indispensable  we  have 
not  yet  gained  much ;  the  decisive  point  is  the  assurance 
of  its  success.  Of  what  use  to  the  owner  or  creditor  is 
the  authority  of  realizing  his  right  by  coercion,  when 
the  preponderance  of  force  is  found  on  the  side  of  the 
opponent?  Under  such  conditions  the  exercise  of  his 
right  of  coercion  takes  the  form  of  a  two-edged  sword, 
whose  sharpness  is  directed  against  himself.  The  whole 
question  of  the  social  organization  of  coercion  is  con- 
nected- with  the  problem  of  bringing  the  preponderance  of 
force  on  the  side  of  right. 

We  can  answer  the  problem  easily  enough  by  saying 
that  this  matter  is  attended  to  by  the  State.  Why, 
then,  call  it  up  as  a  problem?  I  do  not  want  to  disturb 
anybody's  comfort  who  is  satisfied  with  this  reply,  but 
I  for  my  part  cannot  be  content  with  it,  if  I  am  to  do 
justice  to  the  problem  of  presenting  clearly  the  unity  and 
continuity  in  the  conceptual  development  of  coercion  in 
civil  society,  from  its  first  beginnings  in  the  individual 
up  to  its  last  conclusion  in  the  State  and  the  Law. 


§6]        SOCIAL  MECHANICS  — COERCION        219 

He  who  does  not  regard  his  power  as  sufficient  for 
maintaining  his  right  against  violent  injury  or  deforce- 
ment, will  look  around  for  help,  whether  it  be  in  the 
moment  of  danger  when  the  right  is  threatened,  or  as 
soon  as  it  is  established.  Both  forms  of  protection  take 
shape  daily  before  our  eyes  in  international  intercourse ; 
in  the  first  case  by  alliance,  in  the  second  by  guarantee. 
The  imperfect  development  of  the  idea  of  right  in  the 
life  of  nations  is  responsible  for  the  fact  that  these  two 
rudimentary  forms  have  been  retained  in  this  domain 
from  the  time  of  primitive  law;  forms  which  everywhere 
else  were  made  superfluous  by  the  organization  of  the 
law  which  succeeded,  and  hence  were  abolished.^*  Both 
of  them  contain  the  first  beginnings  of  the  realization  of 
the  problem  of  right;  which  is,  to  create  a  preponder- 
ance on  the  side  of  right.  But  only  the  first  beginnings, 
for  the  success  of  either  is  ever  highly  problematical. 
The  one  who  menaces  can  look  around  for  allies  just  as 
well  as  the  one  threatened ;  he  who  finds  the  most  is  the 
strongest,  and  it  is  not  right  but  accident  that  decides 
the  matter.  Guarantee  goes  a  step  higher.  But  its 
value,  too,  as  the  experience  of  international  law  has  at 
all  times  shown,  is  highly  problematical;  for  who  will 
guarantee  the  guarantor?  As  long  as  his  interest  goes 
hand  in  hand  with  that  of  the  principal  or  at  least  is  not 
opposed  to  it,  there  is  no  strain  in  their  relations;  but 
it  is  quite  different  when  their  interests  part;  here  the 
guarantee  is  put  to  the  test,  which  it  only  too  often  fails 
to  stand. 

^  I  thought  I  discovered  a  trace  of  them  in  the  private  law  in  the 
five  witnesses  of  the  ancient  Roman  "mancipatio"  and  "nexum." 
See  my  "Geist  des  romischen  Rechts"  I  §  116  (4th  ed.).  Their 
original  purpose  was  according  to  my  opinion  that  of  assistants 
("testes"  from  "stare") — assistance  not  with  word  alone,  i.e., 
with  testimony,  but  with  the  hand,  with  deed. 


220  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

This  seems  to  indicate  for  law  the  way  in  which  it  can 
bring  the  preponderance  of  power  on  its  side,  and  secure 
the  guarantee  by  self-interest,  i.  e.,  by  means  of  reci- 
procity. This  form  of  reciprocal  security  of  right  is  the 
defensive  and  offensive  alliance.  But  this  means,  too, 
is  not  yet  the  right  one,  for  the  opponent  also,  from  whom 
we  have  to  expect  the  attack,  may  make  use  of  the  same 
means.  And  if  he  does  so,  then  it  is  again  not  right  but 
mere  accident  that  decides;  and  again  the  strongest 
conquers. 

These  are  the  facts  regarded  externally.  The  case  is 
quite  different  when  looked  at  from  within;  and  here, 
indeed,  we  finally  come  upon  the  vital  point  in  the  whole 
organization  of  right.  This  consists  in  the  preponder- 
ance of  the  common  interests  of  all  over  the  particular 
interests  of  one  individual;  all  join  for  the  common 
interests,  only  the  individual  stands  for  the  particular 
interest.  But  the  power  of  all  is,  the  forces  being  equal, 
superior  to  that  of  the  individual ;  and  the  more  so  the 
greater  their  number. 

We  thus  have  the  formula  for  social  organization  of 
force,  viz.,  preponderance  of  the  force  which  is  service- 
able to  the  interests  of  all  over  the  amount  at  the  dis- 
position of  the  individual  for  his  own  interest ;  the  power 
being  brought  over  to  the  side  of  the  interest  common 
to  all. 

The  form  in  private  law  of  a  combination  of  several 
persons  for  the  pursuit  of  the  same  common  interest  is 
partnership,  and  although  in  other  respects  the  State  is 
very  different  from  partnership,  the  formula  in  reference 
to  regulating  force  by  interest  is  quite  the  same  in  both. 
Partnership  contains  the  prototype  of  the  State,  which  is 
indicated  therein  in  all  its  parts.  Conceptually  as  well 
as  historically,  partnership  forms  the  transition  from  the 
unregulated    form    of    force    in   the    individual    to    its 


§6]        SOCIAL  MECHANICS  — COERCION        221 

regulation  by  the  State.  Not  merely  in  the  sense  that  it 
contains  a  combination  of  several  for  the  same  purpose, 
and  thereby  makes  possible  the  pursuit  of  aims  which 
were  denied  to  the  power  of  the  individual  —  an  aspect 
of  partnership  which,  in  its  high  social  significance,  we 
have  already  appreciated  above  (p.  1 57) — but  in  an  incom- 
parably greater  measure  in  the  sense  that  it  solves  the 
problem  of  creating  the  preponderance  of  power  on  the 
side  of  right.  It  does  this  by  putting  in  place  of  the 
opposition  of  two  particular  interests  fighting  one 
another  without  an  assured  prospect  of  the  victory  of 
right,  that  between  a  common  interest  and  a  particular,^' 
whereby  the  solution  comes  of  itself.  In  partnership 
all  partners  present  a  united  front  against  the  one  who 
pursues  his  own  interests  at  the  expense  of  these  com- 
mon interests  assigned  by  the  contract,  or  who  refuses 
to  carry  out  the  duties  undertaken  by  him  in  the  con- 
tract; they  all  unite  their  power  against  the  one.  So 
the  preponderance  of  power  is  here  thrown  on  the  side  of 
right,  and  partnership  may  therefore  be  designated  as  the 
mechanism  of  the  self-regulation  of  force  according  to  the 
measure  of  right. 

Against  this  deduction  I  must  expect  to  have  it  ob- 
jected that  the  force  of  an  individual  partner  may  after 
all  be  stronger  than  that  of  all  the  others  put  together; 
and  also  that  a  majority  may  combine  in  order  to  pursue 
their  particular  interests  at  the  expense  of  the  interests 
of  the  partnership.  Let  my  answer  be  that  I  put  at  the 
basis  of  my  deduction  the  normal  function  of  society  as 
it  is  posited  by  its  purpose  and  intention  in  intercourse. 
In  this  its  normal  form  it  actually  accomplishes  what  I 
credit  it  with :  it  creates  this  preponderance  of  power  on 
the  side  of  the  common  interest.     It  is  true  that  we  have 

^  "Quod  privatim  interest  unius  ex  sociis  .  .  .  ,"  and  "quod 
societati  expedit,"  D.  17.  2.  65  §  5. 


222  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

to  recognize  those  two  possibilities  as  dangers  to  which 
partnership  is  exposed  when  the  normal  conditions  are 
not  present.  Against  the  first  mentioned  danger  it 
offers  help  in  itself,  by  the  indefinite  increase  in  the  num- 
ber of  its  members.  In  a  society  of  ten  members  the 
individual  has  nine  against  him,  in  a  society  of  a  hundred 
he  has  nine  and  ninety,  in  the  society  of  the  State  he  has 
millions  against  him  in  the  form  of  the  State  force. 

The  solution  of  the  problem  to  which  our  entire 
investigation  has  till  now  been  devoted  depends  then 
upon  the  fact,  —  and  I  now  may  be  allowed  to  exchange 
the  term  partnership  for  society,  —  that  society  is  stronger 
than  the  individual;  and  that  therefore  where  it  is 
obliged  to  summon  its  power  in  order  to  assert  its  right 
against  the  individual,  the  preponderance  is  always 
found  on  its  side,  i.  e.,  on  the  side  of  right. 

I  do  not  have  to  explain  why  I  replaced  the  term  part- 
nership by  society.  The  ambiguity  of  this  word  helps  to 
carry  over  the  meaning  of  my  deduction  from  society  in 
the  private  sense,  which  is  partnership,  to  society  in  the 
political  sense,  viz.,  the  State.  The  admissibility  of  such 
transference  of  a  proposition  found  in  one  connection  to 
another  presupposes  that  the  agreement  of  the  two  in 
name  has  a  corresponding  identity  also  in  content ;  and 
that  it  is  not  accident  therefore,  but  the  right  recog- 
nition of  their  inner  equivalency,  that  induced  language 
to  cover  both  with  the  same  name.  A  comparison  of 
private  society  with  political  will  show  the  relative  simi- 
larity of  the  two.  The  fundamental  features  of  both  are 
exactly  alike,  as  follows: 

1.  Community  of  purpose. 

2.  The  presence  of  norms,  which  regulate  its  pur- 
suit; in  the  one,  in  the  form  of  a  contract,  the  "lex 
privata,"  in  the  other  in  the  form  of  a  law,  the  "lex 
pubHca." 


§7]        SOCIAL  MECHANICS  — COERCION        223 

3.  In  their  content :  their  legal  status,  the  rights  and 
duties  of  the  whole  as  well  as  of  the  individuals. 

4.  Realization  of  these  norms  against  the  resistant 
will  of  the  individual  by  means  of  coercion. 

5.  Administration:  the  free  pursuit  of  the  purpose 
with  the  means  at  the  disposal  of  society  within  the 
limits  set  by  the  above  norms,  and  all  that  is  connected 
therewith,  namely,  the  creation  of  a  special  organ  for 
administrative  purposes  when  the  number  of  members  is 
large  (board  of  management,  government).  Belonging 
to  this  is  the  distinction  between  those  hy  whom  and 
those  for  whom  the  administration  is  carried  on  (func- 
tionaries, officials  —  shareholders,  citizens,  subjects). 
Also  the  danger  thence  arising  of  applying  the  common 
means  in  opposition  to  the  interests  of  the  society  and  in 
favor  of  its  administrators;  a  danger  to  be  feared  no  less 
in  political  society  than  in  private  (p.  167).  Further- 
more, and  as  a  means  of  protection  against  this  danger, 
the  control  of  the  administrators  by  the  society  itself 
(general  assembly;  assembly  of  the  estates  of  the  realm). 

The  conceptual  transition  from  private  society  to 
political  is  brought  about  by  an  intervening  link,  viz., 
public  association. 

§7.  Public  Association.  Public  ("offentlich")  is  that 
which  is  open  ("ofifen").  A  public  garden,  river,  square, 
theatre,  hall,  a  public  school,  lecture,  gathering,  is  open 
for  every  one;  every  one  has  free  admittance,  whether 
with  or  without  pay  makes  no  difference  as  regards  the 
concept.  The  Romans  derive  the  designation  of  the  con- 
cept from  the  word  "populus";  "populicum,"  "publicum" 
is  that  which  is  intended  for  all,  for  the  people,  i.  e.,  is 
open    to    all.'"    The    opposite  of    "open"    is    "closed," 

^^  D.  43.  7.  1,  "...  ad  usum  omnium  pertinet";  26.  10.  1  §  6, 
"quasi  publicam  esse  .  .  .  hoc  est  omnibus  pater e'";  Inst.  3.  19  §  2, 
"...  usibus  populi." 


224  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

"locked";  the  opposite  of  "publicum"  is  "privatum," 
"proprium"  ("quod  pro  privo  est."  i.  e.,  that  which  is 
intended  for  a  particular  individual) ,  that  which  every 
one  has  for  himself  alone,  and  from  which  he  accordingly 
excludes  ever\-body  else.  The  whole  contrast  turns 
about  community  and  exclusiveness  of  relation,  and  it 
forms  the  cardinal  point  of  pubUc  and  private  law,  with- 
out, however,  being  exhausted  in  the  contrast  of  these 
two.  The  difference  between  a  private  house  and  a 
public  hall  has  nothing  to  do  with  law ;  both  are  equally 
private  property',  but  their  economic  use  is  different. 
The  one  serves  for  the  owner  exclusively,  the  other  for 
the  whole  public. 

The  contrast  in  reference  to  society  is  found  also  in  the 
form  of  partnership  and  association.^^  The  juristic  dis- 
tinction between  the  two  in  reference  to  their  structure 
is  unimportant  for  our  purposes;  we  are  interested  only 
in  the  distinction  which  is  conditioned  by  the  difference 
in  their  purposes,  namely,  that  of  being  closed  and  being 
open. 

Partnership,  like  all  other  relations  of  private  law,  has 
the  characteristic  of  being  exclusively  intended  for  those 
subjects  who  called  the  legal  relation  into  being  (prin- 

'^  The  "universitas"  of  the  Romans.  Both  expressions,  the  Ger- 
man as  well  as  the  Latin,  have  the  same  fundamental  notion  of  the 
unity  of  what  are  distinct  ("in  unum  vertere"  —  to  unite).  "\'erein- 
baren"  (to  agree)  is  used  only  in  the  objective  sense,  "Verein- 
barung"  (agreement) — contract.  "Vereinigen"  (to  unite),  on  the 
other  hand,  is  used  both  in  the  objective  and  subjective  sense  {"uber 
etwas  sich  vereinigen"  —  "sich  vereinbaren,"  to  come  to  an  under- 
standing in  reference  to  something,  to  agree;  "zu  etwas  sich  verein- 
igen"—  "sich  verbinden,"  to  unite  for  some  purpose).  "Verein" 
(association)  is  used  only  in  the  subjective  sense.  To  replace  the 
expression  "Verein,"  which  is  already  firmly  fixed  in  the  language,  by 
the  term  "Genossenschaft"  (lit.  comradeship)  is  to  my  mind  not  at 
all  called  for. 


5  7]        SOCIAL  MECRWICS  — COERCION        225 

ciple  of  exdusiveness) .  E\en,'  one  of  the  several  partners, 
like  each  joint-owTier,  has  his  definite  portion,  which  may 
be  represented  in  the  form  of  a  fraction.  Each  is  a 
part-oivner ;  and  in  so  far  as  he  is  that,  he  is  entitled  to 
his  part  and  protected  therein  quite  as  exclusive'y  as 
is  the  sole  owTier  in  the  whole  of  the  propert>'  which  he 
by  himself  o^^tis.  Ever\'  part  forms,  so  to  speak,  a  juris- 
tic cell  complete  in  itself.  A  consequence  of  this  is  that 
a  partner  does  not  by  withdrawal  or  death  lose  the  por- 
tion which  falls  to  his  share  from  the  management  of  the 
business  up  to  that  time. 

The  relation  is  quite  different  in  the  case  of  associa- 
tions. The  legal  status  of  the  associate  members  cannot 
be  expressed  in  the  form  of  a  definite  share.  They  are 
not  called  ''part-crcvners"  but  ''members''  ("Mit-glieder"); 
and  for  this  ver\'  reason  they  have  no  claim,  in  case  of 
withdrawal  or  death,  to  be  paid  the  quota  of  the  joint 
property-  which  would  fall  to  their  share  in  accordance 
with  the  number  of  members  at  the  time. 

The  difference  in  the  manner  in  which  the  indi\*idual 
members  are  benefited  by  a  partnership  and  by  an 
association  coincides  with  the  difference  bet^-een  "frui" 
and  "uti."  "Frui"  is  di\"isible,  "uti"  is  indi\-isible ;  or  to 
express  ourselves  more  clearly,  in  "frui"  the  competition 
of  a  number  of  persons  is  represented  in  the  form  of 
definite  parts  (quotas) ,  even.-  new  share  makes  the  parts 
smaller,  even."  part  that  falls  out  makes  them  larger. 
"Uti,"  on  the  other  hand,  ever>-  one  of  those  entitled 
enjoys  in  its  entirety.'.  If  the  thing  can  be  done  as,  for 
example,  with  public  roads,  then  hundreds  and  thousands 
may  participate  without  the  abridgment  of  the  "uti"  of 
any  single  one.  The  former  is  the  relation  in  partner- 
ships, the  latter  in  associations.  WTien  the  fruit  or  the 
income  of  a  thing  is  divided  among  eleven  competitors 
instead  of  among  ten  as  heretofore,  even.'  one  of  the  ten 


226  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

suffers  from  it;  his  own  part  becoming  so  much  the 
smaller.  On  the  other  hand,  the  advantages  which  an 
association  offers  to  its  members  suffer  no  diminution 
by  the  admission  of  new  members;  but,  on  the  contrary, 
these  are  rather  increased  as  a  rule.  A  large  association 
is  enabled  to  offer  more  to  its  members  than  a  small  one. 
For  this  reason  an  association  is  not  merely  willing  and 
ready  to  receive  new  members,  but  it  welcomes  them  and 
must  do  so.  And  this  is  the  case  whether  its  purpose  be 
confined  to  the  interests  of  the  individual  members  {self- 
interested  associations) ,  or  whether  the  object  of  the  asso- 
ciation is  the  promotion  of  general  interests  {unselfish 
associations,  associations  for  the  common  welfare).  For 
every  addition  of  new  members  raises  the  powers  of  the 
association,  both  of  its  individual  members  as  well  as 
of  the  society  as  a  whole,  and  hence  also  the  means  for 
the  prosecution  of  the  purpose;  and  every  addition 
strengthens  the  moral  element  of  the  association,  the 
inner  marrow  of  it,  so  to  speak,  i.e.,  the  behef  of  the 
members  in  its  utility  and  necessity.  In  short,  it 
strengthens  the  raison  d'etre  and  future  of  the  association ; 
promoting  an  esprit  de  corps,  by  flattering  the  members' 
vanity,  and  thus  lending  new  stimulus  to  their  interest 
and  zeal.  Therefore  the  admission  of  new  members  is 
provided  for  in  the  statutes  of  all  associations ;  an  asso- 
ciation that  would  exclude  new  membership  would  be 
doomed  from  the  start,  by  denying  itself  what  is  essen- 
tial to  an  association:  its  public  and  open  character. 
Associations  animated  by  the  right  spirit  rather  zealously 
endeavor  to  gain  new  members;  every  association  seeks 
to  expand,  to  grow  as  far  as  possible  in  power,  prestige 
and  influence.  Exclusion  is  the  essence  of  partnership, 
expansion  is  the  essence  of  association.  This  impulse 
of  expansion  is  common  to  all  associations,  the  most 


§7]        SOCIAL  MECHANICS  — COERCION        227 

important  as  well  as  the  least  important :  ^^  State  and 
Church,  political,  ecclesiastical,  scientific,  social  —  the 
State  conquers,  the  Church  makes  propaganda,  associa- 
tions solicit  members.  The  name  is  different,  the  thing 
is  the  same. 

But  there  are  certain  associations,  and  they  existed 
in  great  numbers  particularly  in  former  times,  which 
were,  according  to  their  original  plan,  intended  as  asso- 
ciations, and  grew  up  as  such,  yet  later  took  the  form  of  a 
hybrid  of  association  and  partnership.  These  are  such 
associations  as,  to  express  it  briefly  in  juristic  terms, 
grant  their  members  "frui"  in  addition  to  "uti";  as, 
for  example,  in  a  municipality,  definite  shares  in  the 
common  lands,  forests,  etc.  As  long  as  in  the  latter 
case  the  communities  possessing  these  advantages  are 
so  large  that  the  present  members  are  not  injured  by  the 
admission  of  new  ones,  they  have  no  reason  for  opposing 
such  admission.  But  when  this  is  no  longer  the  case, 
a  change  necessarily  takes  place ;  and  the  remedy  which 
egoism  hits  upon  is  that  the  old  members  keep  the  "frui" 
exclusively  for  themselves,  and  allow  the  newcomers  only 
a  share  in  the  enjoyment  of  the  "uti."  In  other  words, 
two  groups  of  members  are  formed  within  the  same  asso- 
ciation, each  with  different  rights;    there  are  members 

^-  In  those  very  associations  which  live  without  any  serious  pur- 
poses on  trifles  only,  on  names,  flags,  colors,  committees,  parade, 
conventions,  vanity,  jealousy,  this  impulse  often  puts  forth  the 
most  edifying  blossoms.  There  is  a  peculiar  bit  of  folly  in  man- 
kind, a  particular  "mania  sine  delirio"  which  is  quite  compatible 
with  intellectual  health  in  other  respects,  viz.,  the  folly  of  making 
associations.  It  takes  the  place  of  children's  toys  in  grown-up  chil- 
dren. In  England,  where  the  impulse  of  association  has  developed 
in  the  richest  and  healthiest  manner,  it  seems  also  to  have  put  forth 
these  delightful  excrescences  in  luxurious  plenty  (I  am  referring 
here  to  the  piquant  persiflage  of  Boz  Dickens  in  his  "Pickwick 
Papers"). 


228  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

having  full  rights  and  members  having  only  partial 
rights.  This  form  of  the  relation  is  so  offensive  and  pro- 
voking to  those  having  the  narrower  rights  that  it  was 
always  the  cause  of  the  most  violent  conflicts;  from  the 
days  of  the  Roman  Patricians,  who  in  this  manner 
excluded  the  Plebeians  from  the  "ager  publicus,"  to  our 
own  century.  The  relation  suffers  from  an  inner  contra- 
diction; it  is  a  hybrid  formation  of  partnership  and 
association  which,  as  the  opposition  is  irreconcilable, 
unceasingly  fight  against  each  other,  until  association 
finally  obtains  the  upper  hand. 

With  association  our  development  of  the  concept  has 
reached  the  level  of  the  State.  As  far  as  its  form  is  con- 
cerned the  latter  stands  on  a  line  with  all  other  associa- 
tions, though,  with  the  exception  of  the  church,  it  far 
surpasses  them , — by  its  social  function ,  and  by  the  wealth 
of  the  content  with  which  in  the  course  of  its  develop- 
ment it  equips  itself  in  rising  progression.  In  adding  the 
element  of  publicity  {i.  e.,  of  being  open  to  the  outside 
world)  to  the  other  elements  which  partnership  already 
has  in  common  with  the  State  (p.  222),  association  re- 
moves the  only  difference  which  still  remained  between 
the  two.  With  this  last  step  the  organ  of  association 
receives  that  utility  and  completeness  which  makes  it 
fit  for  the  pursuit  of  all  purposes  of  society;  for  the  recep- 
tion of  every  content,  the  richest  as  well  as  the  poorest. 
Association  is  the  form  of  organization  of  society  in  gen- 
eral. There  is  no  purpose  society  has  to  realize  for  which 
this  form  cannot  be  used  and  has  not  historically  been 
used ;  and  there  is  no  purpose  which  has  not,  after  having 
been  first  realized  by  the  individual,  finally  gained  con- 
trol of  this  form  or  will  not  gain  control  of  it.  This  form 
is  as  inevitably  required  for  social  purposes  as  the  exclu- 
sive form  of  private  right  is  required  for  the  purposes  of 
the  individual.     If   a   certain  relation   is   intended   for 


§71        SOCIAL  MECHANICS  — COERCION        229 

individual  use,  its  legal  expression  is  found  inclosing  and 
shutting  it  against  the  outside  world,  in  the  principle  of 
exclusiveness;  if  it  is  intended  for  society,  it  finds  its 
expression  in  resting  open  to  the  outside  world,  and  in 
admitting  every  one  who  is  fit  to  co-operate  in  the  reali- 
zation of  society's  objects. 

Association  belongs  to  public  law,  or,  more  correctl}', 
it  is  altogether  coincident  with  it,  just  as  private  law 
coincides  with  the  individual.  It  is  arbitrary  in  my 
opinion  to  limit  the  concept  of  public  law  to  the  State 
and  the  Church.  It  is  true  that  these  two  embrace  a 
vital  content  of  such  wealth  and  importance  that  in 
comparison  with  them  every  other  association  is  as  a 
mouse  compared  with  a  lion.  But  mouse  and  lion  are 
both  mammals,  and  you  may  turn  and  twist  as  you  like, 
you  cannot  get  away  from  the  fact  that  State  and  Church 
are  associations  for  the  common  welfare.  The  difference 
between  the  particular  species  is  not  structural,  but 
merely  functional;  it  is  based  not  upon  a  difference  in 
their  juristic  mechanism  but  upon  a  difference  in  their 
purpose;  it  is  a  difference  not  of  form  but  of  content. 
We  grant  that  the  State — I  include  in  the  sequel  the 
municipality  also  in  this  term  —  in  the  course  of  its 
development  gradually  appropriated  almost  the  entire 
content  of  the  life  of  society.  Still,  always  the  fact 
remains  that  not  only  was  the  State's  original  content 
in  the  beginning  of  history  relatively  modest,  and 
limited  essentially  to  the  maintenance  of  security  within 
and  without,  but  also  that  the  living  needs  of  society 
constantly  produced  new  objects,  in  addition  to  those 
which  the  State  had  already  absorbed.  These  new  pur- 
poses, being  foreign  to  the  State,  led  a  separate  and  inde- 
pendent existence  in  the  form  of  associations  until  they 
had  attained  the  necessary  degree  of  maturity;  and 
then  they  burst  the  covering  in  which  they  had  existed 


230  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

hitherto  and  emptied  their  entire  content  into  that  form 
which  it  would  seem  was  intended  to  take  up  everything 
within  itself,  viz.,  the  State.  What  was  instruction 
formerly?  A  private  affair.  What  was  it  next?  The 
business  of  association.  What  is  it  now?  The  business 
of  the  State.  What  was  the  care  of  the  poor  formerly? 
A  private  matter.  What  was  it  next?  The  business 
of  association.  What  is  it  now?  The  business  of  the 
State.  Individual,  association,  State  —  such  is  the  his- 
torical step-ladder  of  social  purposes.  An  object  is 
first  taken  up  by  the  individual ;  as  it  grows  larger  it  is 
taken  over  by  associated  interests;  when  it  grows  to 
its  full  size  it  falls  to  the  lot  of  the  State.  If  inference 
from  the  past  to  the  future  be  justified,  the  State  will 
in  the  final  future  take  up  within  itself  all  social  purposes. 
The  association  is  the  pioneer  which  levels  the  roads  for 
the  State,  —  what  is  now  association  is  after  thousands 
of  years  the  State.  All  associations  for  the  common 
welfare  bear  within  them  an  order  on  the  State;  it  is  only 
a  question  of  time  when  the  latter  will  honor  it. 

§  8.  The  State.  Separation  from  Society.  After  a 
long  and  roundabout  way  we  have  finally  found  what 
we  are  looking  for,  viz.,  the  final  form  of  utilizing  force 
for  human  purposes;  the  social  organization  of  coercive 
force:  the  State.  We  might  have  arrived  at  it  more 
easily.  It  depended  only  upon  ourselves  to  take  up 
at  once  the  idea  of  social  coercion  in  the  ready-made 
form  of  the  State.  Why  the  roundabout  way?  In 
order  to  show  how  and  why,  so  long  as  right  had  not 
extended  to  the  State,  we  could  not  solve  the  problem 
of  right.  In  the  State,  right  for  the  first  time  finds  what 
it  was  looking  for:  mastery  over  force.  But  it  attains 
its  goal  only  within  the  State;  for  on  the  outside,  in  the 
conflict  of  States  among  themselves,  might  stands 
opposed  to  right  in  the  same  hostile  manner  as,  before 


§8]       SOCIAL  MECHANICS  — COERCION        231 

the  historical  appearance  of  the  State,  the  two  were 
opposed  to  each  other  in  the  relation  of  individual  to 
individual ;  where  the  question  of  right  takes  practically 
the  form  of  a  question  of  might. 

Starting  from  the  question  how  society  comes  to  solve 
the  problem  which  is  placed  before  it  (p.  70),  I  gave  the 
answer  in  Chapter  VII,  as  first,  by  means  of  reward,  and 
secondly  by  means  of  coercion.  But  the  social  organi- 
zation of  coercion  is  synonymous  with  State  and  Laiv. 
The  State  is  society  as  the  bearer  of  the  regulated  and 
disciplined  coercive  force.  The  sum  total  of  principles 
according  to  which  it  thus  functions  by  a  discipline  of 
coercion,  is  Law.  By  defining  the  State  in  this  manner 
I  do  not  mean  that  this  formula  exhausts  all  its  activities, 
and  that  it  is  not  also  something  else  besides.  I  have 
just  proven  the  contrary  by  showing  how  the  State  in 
the  course  of  its  development  continually  enriches  itself 
with  objects  previously  foreign  to  it.  But  no  matter 
how  manifold  and  numerous  the  purposes  may  be  which 
it  has  already  taken  up  into  itself  —  and  will  yet  take 
up,  —  there  is  one  purpose  which  surpasses  all  the  rest 
and  which  was  directed  to  it  from  the  very  beginning, 
nay,  called  the  State  into  being,  and  which  never  can  be 
wanting.  This  is  the  purpose  of  law,  the  formation  and 
securing  of  law.  All  other  problems  of  the  State  recede 
into  the  second  place  in  comparison  with  this  one; 
neither  do  they  emerge  historically  until  this  first  and 
most  essential  one  is  settled;  and  they  have  its  per- 
manent solution  as  a  necessary  condition  —  the  cultivation 
of  law  is  the  essential  function  of  the  life  of  the  State. 

This  leads  us  back  to  that  relation  between  State  and 
society  already  touched  upon  before  (p.  67).  I  believe 
I  cannot  express  it  better  than  by  saying  that  the  State 
is  coercive  society.  In  order  to  be  able  to  coerce,  society 
takes  the  form  of  the  State;    the  State  is  that  form 


232  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

which  the  regulated  and  assured  exercise  of  social  coer- 
cive force  takes.  In  short,  it  is  the  organization  of  social 
coercion.  According  to  this,  one  might  say,  State  and 
society  would  have  to  coincide;  and  just  as  the  latter 
extends  over  the  entire  earth  (p.  68),  the  State  too 
would  have  to  embrace  the  whole  earth.  But  yet  the 
State  remains  behind  society;  for  the  latter  is  universal, 
the  former  particularistic.  The  State  only  solves  those 
problems  which  arise  for  it  within  limited  geographical 
bounds  (political  district,  territory);  the  sphere  of  its 
sovereignty  ends  everywhere  with  the  boundary-posts. 

The  problem  of  the  organization  of  social  coercion  is 
therefore  the  point  where  State  and  society  part ;  where 
the  former  finds  itself  obliged  to  remain  behind  the  latter, 
which  knows  no  boundary  on  earth.  But,  as  if  it  knew 
that  its  limitations  were  imperfectly  drawn,  the  State 
is  always  extending  and  widening  its  boundaries.  In 
the  course  of  historical  development  the  greater  com- 
munity always  swallows  up  the  smaller,  and  when  the 
smaller  are  swallowed  up  and  only  the  larger  remain,  a 
struggle  for  life  and  death  is  again  provoked  between  them 
until  they,  too,  are  welded  into  greater  political  complexes. 
In  this  way  States  are  ever  increasing  in  size.  From 
the  duodecimo  of  the  small  communities  of  classical 
antiquity  the  State  swells  to  octavo;  from  octavo  to 
quarto;  from  quarto  to  folio  —  every  increase  denotes 
the  extinction  of  as  many  hitherto  independent  com- 
munities. We  may  censure  history  because  she  will 
not  tolerate  the  small  peoples  in  the  lives  of  nations; 
because  the  small  ones,  if  they  do  not  understand  how 
to  become  big  themselves,  must  make  room  for  the  great. 
We  may  commiserate  the  generations  which  were  chosen 
to  experience  such  catastrophes  —  history  knows  why 
she  has  inflicted  such  hardship  upon  them;  and  she 
provides  for  it  that    the   grief  and   misfortune  of  one 


§9]        SOCIAL  MECHANICS— COERCION        233 

generation  is  compensated  for  in  a  later  one;  and  not  sel- 
dom does  the  grandson  bless  what  the  grandfather  cursed. 
The  impulse  of  expansion  of  States  by  conquest  is 
society's  protest  against  the  geographical  limitations 
which  are  imposed  upon  her  by  the  organization  of  social 
coercion.  Till  now  there  has  never  been  a  period  on 
earth  when  this  impulse  of  extension  did  not  stir  in  every 
vigorous  nation.  Will  the  distant  future  bring  a  change? 
Who  can  say?  If  the  small  span  of  time  which  humanity 
has  lived  till  now  —  I  call  it  small  even  if  it  should 
amount  to  a  hundred  thousand  years  or  more — if,  then, 
this  small  span  of  time  permits  any  inference  to  be  made 
concerning  that  infinite  time  which  is  still  before  us, 
then  the  future  of  man  seems  to  consist  in  an  ever  pro- 
gressing approximation  of  State  and  society.  Though 
the  idea  of  a  universal  State,  embracing  the  whole  world 
in  the  form  of  a  central  force,  uniting  and  controlling  all 
the  single  States  in  the  manner  of  municipalities  — 
though  this  may  belong  to  the  Utopias  of  the  philosopher, 
for  whom  it  is  easier  to  follow  up  ideas  to  their  ultimate 
consequences  than  it  is  for  humanity  to  realize  them, — 
still  the  approximation  of  State  and  society  seems 
assured. 

The  organization  of  social  coercive  force  embraces  two 
sides;  the  establishment  of  the  external  mechanism  of 
force,  and  the  setting  up  of  principles  to  regulate  its  use. 
The  form  of  solution  of  the  first  problem  is  the  State 
force,  that  of  the  second  is  the  Law.  Both  concepts 
stand  in  the  relation  of  mutual  dependence:  the  State 
,  force  has  need  of  the  Law,  the  law  has  need  of  the  State 
force. 

§  9.  State  Force.  The  absolute  requisite  of  the  State 
force,  demanded  by  the  purpose  of  the  State  itself,  is  the 
possession  of  the  highest  force,  superior  to  every  other 
power  within  the  jurisdiction  of  the  State.     Every  other 


234  THE   CONCEPT   OF   PURPOSE    [Ch.  viii 

power,  of  the  individual  or  of  the  many,  must  be  "under" 
it;  and  it  must  be  "over"  the  other.  Accordingly  lan- 
guage denotes  the  former  side  of  the  relation  as  sub- 
mission ("Untertanigkeit,"  "unter-getan,"  "untertan," 
"sub-ditus"),  the  latter  as  sovereignty  ("supra,"  "supra- 
nus,"  "sovrano"),  the  State  force  itself  which  possesses 
it,  SiS  authorities  ("Obrigkeit") ;  and  the  act  by  which  it 
extends  this  power  over  a  domain  not  subject  hitherto, 
as  subjection  ("Unterweriung"),  conquest  ("Er-ober-ung"). 
All  other  requirements  of  the  State  recede  before  this 
one.  Before  this  is  achieved  all  others  are  premature, 
for  in  order  to  fulfil  them  the  State  must  exist  first,  and 
it  does  not  exist  until  it  has  solved  the  question  of  power 
in  the  above  sense.  Powerlessness,  impotence  of  the 
State  force,  is  the  capital  sin  of  the  State,  from  which 
there  is  no  absolution;  a  sin  which  society  neither  for- 
gives nor  tolerates,  it  is  an  inner  contradiction :  State  force 
without  force!  Nations  have  borne  the  meanest  abuse  of 
State  force,  the  scourge  of  Attila  and  the  Caesar  madness 
of  the  Roman  emperors;  nay,  they  have  not  seldom  cele- 
brated as  heroes  despots  before  whom  they  crawled  in 
the  dust,  feasting  with  intoxication  on  the  sight  of  the 
elemental  magnificence  of  accumulated  human  power, 
a  wild  irresistible  might  which,  like  a  hurricane,  throws 
down  everything  before  it,  while  they  forgot  and  for- 
gave that  they  were  themselves  the  victims  (p.  191). 
Even  in  a  state  of  delirium,  despotism  still  remains  a 
political  form,  a  mechanism  of  social  force.  But 
anarchy,  i.  e.,  impotence  of  the  State  force  is  no  longer  a 
political  form,  it  is  an  absolutely  antisocial  condition; 
the  decomposition,  the  dissolution  of  society.  Every 
one  who  puts  an  end  to  it,  in  whatever  way  it  may  be, 
with  fire  and  sword,  the  native  usurper  or  the  foreign 
conqueror,  does  a  service  to  society;  he  is  its  savior  and 
benefactor;    for  an  intolerable  form  of  political  system 


§9]        SOCIAL  MECHANICS— COERCION        235 

is  nevertheless  better  than  no  system  at  all.  Nor  is  it 
easy  for  nations  to  get  back  from  a  condition  of  political 
barbarism  to  one  of  political  order.  It  needs  an  iron 
hand  to  accustom  them  again  to  discipline  and  obedi- 
ence; the  transition  passes  through  despotism;  which 
puts  the  arbitrariness  of  State  force  over  against  anarchic 
violence.  When  the  Roman  people  in  the  period  of  the 
civil  wars  had  forgotten  discipline  and  order,  the  Roman 
Csesars  appeared,  to  establish  anew  the  force  of  the 
State  and  replace  it  in  its  rights,  and  terrorism  mounted 
the  throne  along  with  them.  The  horrors  and  inhumani- 
ties in  which  they  indulged  were  only  the  orgies  of  the 
State  force  celebrating  its  home-coming ;  the  bloody  proof 
that  it  had  come  into  power  again  and  had  no  force  on 
earth  to  fear  any  more.  This  proof  given,  then  only 
could  moderation  make  its  appearance. 

Revolution  bears  quite  a  different  character  from 
anarchy.  Although  outwardly  similar  to  it  in  that  it 
also  contains  a  disturbance  of  the  political  order,  it  is 
fundamentally  different  from  it,  because  it  does  not 
negate  order  in  general,  but  only  the  existing  order.  It 
desires  order,  but  a  different  one  from  the  one  existing 
hitherto.  If  it  succeeds  we  call  it  revolution;  if  it  does 
not  succeed,  we  call  it  rebellion,  insurrection.  In  the 
success  of  the  first  lies  the  sentence  of  condemnation  of 
the  political  powers;  in  the  failure  of  the  second  lies  its 
own  doom. 

The  preceding  investigation  postulates  the  predomin- 
ance of  the  power  of  the  State  over  every  other  power 
within  its  jurisdiction,  but  it  has  not  shown  how  it 
happens  that  there  is  such  predominance  —  we  must 
now  get  clear  on  this  matter.  One  might  suppose  that 
the  thing  can  be  settled  simply  by  means  of  our  principle 
mentioned  above  (p.  220) ;  that  the  power  of  all  surpasses 
that  of  the  individual.     We  based   upon  this  principle 


236  THE  CONCEPT  OF  PURPOSE    [Ch.  Vlll 

the  security  of  the  common  interest  in  partnership 
against  the  particular  interest,  because  the  power  of  all 
entered  the  lists  for  the  former,  but  only  the  power  of 
the  individual  for  the  latter.  The  same  opposition  of 
interests  and  of  the  powers  in  their  service  is  repeated 
in  the  State;  on  the  one  side  the  purpose  of  the  State, 
the  interests  of  all,  and  for  its  defence  the  force  of  the 
State  —  the  power  of  all ;  on  the  other  side  the  particular 
interest  and  the  merely  private  power. 

But  the  logic  of  this  opposition  of  the  power  of  all  and 
that  of  the  individual  is  valid  only  when  it  is  an  individual 
or  a  minority  that  is  opposed  to  the  power  of  all,  but 
not  when  it  is  the  majority  that  is  so.  For  in  this  case, 
if  the  question  of  power  in  the  State  were  decided  by 
mere  numbers,  the  predominance  of  power  would  neces- 
sarily go  over  to  the  side  of  the  majority,  and  then  the 
force  of  the  State  would  always  be  powerless  against  the 
majority.  But  the  experience  of  all  times  has  shown 
that  the  force  of  the  State  may  have  the  entire  population 
against  it,  and  yet  be  in  a  position  to  maintain  its  own 
power.  Numbers  alone,  therefore,  do  not  decide  the  mat- 
ter, else  the  force  in  the  State  would  always  be  with  the 
majority  of  the  given  moment,  and  the  political  power 
would  be  in  a  constant  state  of  fluctuation  and  vacillation. 
Happily,  however,  the  matter  is  different.  The  firm- 
ness of  the  State  depends  upon  the  fact  that  the  influence 
of  the  numerical  element  on  the  question  of  power  is 
counteracted  by  two  other  factors:  the  organization 
of  power  in  the  hands  of  the  State  force,  and  the  moral 
power  which  the  idea  of  the  State  exerts. 

The  force  of  the  State,  as  regards  its  substance,  is 
nothing  but  a  quantum  of  popular  power — physical, 
spiritual,  economic,  collected  for  certain  social  purposes. 
And  this  power,  too,  as  need  scarcely  be  stated,  is  always 
much  smaller  than  that  which  remains  on  the  side  of 


§9]        SOCIAL  MECHANICS  — COERCION        237 

the  people.  Quantitatively,  therefore,  the  natural  bearer 
of  the  power,  the  people,  is  always  superior  to  the  official 
bearer  thereof,  the  State.  But  this  proportion  of  the 
two  is  essentially  altered  by  the  fact  that  the  power  of 
the  people  is  raw  substance,  whereas  that  of  the  State 
is  organized.  The  predominance  of  organized  power 
over  unorganized  is  the  predominance  of  the  man  who 
has  only  one  sword,  but  well  sharpened  and  always 
ready,  over  the  one  who  has  several  dull  ones,  and  has 
to  look  for  them  when  he  needs  them,  and  does  not  know 
how  to  use  them. 

The  practical  moral  for  the  State  is  therefore  self- 
evident;  it  consists  positively  in  the  highest  possible 
perfection  of  the  organization  of  its  own  forces,  and 
negatively  in  the  prevention  of  any  organization  that 
threatens  it  on  the  part  of  the  forces  of  the  people. 
If  every  art  has  its  technique,  then  the  State  organization 
of  forces  may  be  designated  as  the  proper  technique  of 
the  political  art;  and  if  we  call  that  person  a  virtuoso 
who  has  developed  technique  to  perfection,  we  may  also 
speak  in  reference  to  the  above  species  of  technique 
of  a  virtuosoship  of  States.  Technique  is  not  the  highest, 
for  the  idea  stands  above  it,  which  it  is  meant  to  serve, 
but  it  is  the  condition  of  the  highest.  How  important 
it  is  can  be  shown  by  the  example  of  the  history  of  Rome, 
and  by  a  comparison  of  the  former  German  empire  with 
that  State  of  modern  times  which  has  understood  as 
no  other  has  how  best  to  make  up  for  the  insignificance 
of  its  forces  by  an  exemplary  organization:  I  speak  of 
Prussia. 

This  is  the  positive  side  of  the  problem.  The  negative 
side  of  it  consists  in  preventing  the  organization,  dan- 
gerous to  the  State,  of  hostile  elements;  or,  since  organi- 
zation proceeds  in  the  form  of  associations,  in  the 
use    of    the    proper    legal    restrictions,   and    a   careful 


238  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

administrative  \igilance,  for  all  associations.  The  forces 
of  associations  are  qualitatively  not  different  from  those 
of  the  State,  and  in  respect  to  quantity  there  is  no  ele- 
ment in  the  associations  themselves  which  puts  a  definite 
limit  upon  the  accumulation  of  forces.  The  association 
may  have  more  wealth  than  the  State,  and  if  it  extends 
beyond  the  limits  of  the  State  territory  it  may  have 
more  members  than  the  State.  If  we  consider  in  addition 
the  fact  that  the  association  employs  for  its  purposes 
the  same  mechanism  as  the  State,  we  see  the  great 
danger  which  the  former  contains  for  the  latter.  Being 
its  most  efficient  aid  in  the  pursuit  of  social  purposes 
when  it  stands  on  the  State's  side  (p.  229),  it  is  trans- 
formed into  its  most  dangerous  enemy  when  it  takes 
an  opposite  direction. 

The  State  is  the  only  competent  as  well  as  the  sole 
owner  of  social  coercive  force  ■ —  the  right  to  coerce 
forms  the  absolute  monopoly  of  the  State.  Every  asso- 
ciation that  wishes  to  realize  its  claims  upon  its  members 
by  means  of  mechanical  coercion  is  dependent  upon  the 
co-operation  of  the  State,  and  the  State  has  it  in  its 
power  to  fix  the  conditions  under  which  it  will  grant  such 
aid.  But  this  means  in  other  words  that  the  State  is 
the  only  source  of  law,  for  norms  which  cannot  be  enforced 
by  him  who  lays  them  down  are  not  legal  rules.  There 
is  therefore  no  association  law  independent  of  the  author- 
ity of  the  State,  but  only  such  as  is  derived  therefrom. 
The  State  has  therefore,  as  is  involved  in  the  concept 
of  the  supreme  power,  the  primacy  over  all  associations 
within  its  domain;  and  this  applies  to  the  Church  also. 
If  the  State  grants  associations  the  right  of  coercion 
within  their  spheres,  it  holds  good  only  as  long  as  the 
State  thinks  this  advisable  —  a  "precarium"  of  the 
State  law  which,  all  assurances  to  the  contrary  notwith- 
standing, can  always  be  taken  back  by  it;  for  contracts 


§10]      SOCIAL  MECHANICS— COERCION        239 

of  this  sort,  contradicting  as  they  do  what  is  essential 
to  the  existence  of  the  State,  are  null  and  void.*^  The 
opinion  that  the  will  of  the  individual  is  sufficient  to 
transfer  to  another,  whether  it  be  individual  or  associa- 
tion, the  power  of  coercion  over  himself,  needs  no  serious 
refutation.  If  it  were  well  founded,  the  creditor  could 
reserve  to  himself  by  stipulation  the  right  of  Shylock, 
and  an  association,  the  entire  property  of  members  in 
case  of  withdrawal ;  the  State  would  only  have  to  play 
the  bailiff,  who  would  carry  out  these  agreements.  The 
autonomy  of  individuals  as  well  as  of  associations  finds 
its  limit  in  the  criticism  of  the  State,  which  is  guided 
by  regard  for  the  welfare  of  society;  to  it  belong  the 
forces  of  coercion,  and  the  judgment  of  the  purposes 
for  which  it  will  use  them. 

As  a  second  element  upon  which  the  predominance 
of  the  State  over  the  elementary  power  of  the  people 
depends,  was  named  above  (p.  236),  the  moral  power 
of  the  idea  of  the  State.  I  understand  by  this  all  those 
psychological  motives  which  fall  into  the  scale  in  the 
cause  of  the  State  when  we  think  of  the  State  and  the 
people  as  in  mutual  conflict,  viz.,  insight  into  the  neces- 
sity of  political  order;  the  sense  of  right  and  law;  anxi- 
ety for  the  danger  threatening  persons  and  property 
incurred  in  every  disturbance  of  order,  and  fear  of 
punishment. 

We  have  now  concluded  our  view  of  the  external  aspect 
in  the  organization  of  the  social  force  of  coercion,  and 
turn  to  the  internal,  viz.,  the  Law. 

§  10.  The  Law —  Its  Dependence  upon  Coercion.  The 
current  definition  of  law  is  as  follows:    law  is  the  sum 

"  The  same  thing  appHes  here  as  the  Roman  jurist  says  in  D.  43. 
26.  12,  of  the  non-obligatory  character  of  such  contracts  against 
ownership,  "nulla  vis  est  huius  conventionis,  ut  rem  alienam 
domino  invito  possidere  liceat." 


240  THE   CONCEPT   OF   PURPOSE    [Ch.  viii 

of  the  compulsory  rules  in  force  in  a  State,  and  in  m>^ 
opinion  it  has  therewith  hit  the  truth.  The  two  ele- 
ments which  it  contains  are  that  of  rule,  and  that  of 
the  realization  of  it  through  coercion.  Only  those  rules 
laid  down  by  society  deserve  the  name  of  law  which  have 
coercion,  or,  since,  as  we  have  seen,  the  State  alone 
possesses  the  monopoly  of  coercion,  which  have  political 
coercion  behind  them.  Hereby  it  is  implicitly  said  that 
only  the  rules  which  are  provided  by  the  State  with 
this  function  are  legal  rules ;  or  that  the  State  is  the  only 
source  of  law. 

The  right  of  making  their  own  laws  (autonomy)  for 
their  owti  affairs,  which  many  other  associations  besides 
the  State  have  actually  exercised,  is  not  opposed  to 
this  view,  for  it  has  its  juristic  reason  in  the  express 
grant  or  the  tacit  toleration  on  the  part  of  the  State; 
it  does  not  subsist  by  its  own  power,  but  by  derivation 
from  the  State.  This  applies  also  to  the  Christian 
Church.  That  its  own  conception  may  be  a  different 
one,  and  the  mediaeval  State  may  have  recognized  it; 
that  the  "jus  canonicum"  may  have  been  considered 
during  a  thousand  years  as  an  independent  source  of  law, 
can  no  more  be  decisive  for  modem  science  (once  the 
latter  is  convinced  that  this  conception  is  incompatible 
with  the  essence  of  the  State  and  of  Law)  than  the  Church 
doctrine  of  the  motion  of  the  sun  around  the  earth  for 
modem  astronomy. 

In  so  far,  however,  as  the  Church,  without  the  help 
of  the  external  power  of  the  State,  is  able  to  realize  the 
commandments  which  it  imposes  upon  its  members 
by  the  moral  lever  of  the  religious  feeling,  we  can  say 
that  these  rules,  although  they  are  devoid  of  external 
coercion  and  hence  are  not  legal  norms,  nevertheless 
practically  exercise  the  function  of  legal  rules.  But 
if  we  should  want  to  call  these  rules  law  for  this  reason. 


§10]      SOCIAL  MECHANICS— COERCION        241 

we  could  do  the  same  with  every  other  association, 
even  one  that  is  forbidden  by  the  State ;  and  we  should 
then  have  to  speak  of  law  in  a  robber  band.  The  jurist 
who  does  not  want  to  lose  all  firm  ground  under  his 
feet  must  not  speak  of  law  in  such  a  case;  for  him 
there  is  no  other  criterion  of  law  than  the  recognition  and 
realization  of  the  same  by  the  force  of  the  State.  The 
true  pedagogue  may  be  able,  by  means  of  moral  influ- 
ence, by  means  of  praise  and  blame,  to  replace  the  rod, 
but  this  psychological  restraint  does  not  for  that  reason 
turn  into  a  rod.  If  general  recognition  and  actual  obedi- 
ence of  certain  rules  of  human  conduct  were  sufficient 
to  lend  them  the  stamp  of  law,  —  a  point  of  view  from 
which  an  attempt  was  recently  made  to  come  to  the 
assistance  of  the  law  of  the  Church,  —  then  morality 
and  ethics  would  also  have  a  claim  to  this  name.  These 
are  not  without  general  recognition  and  obedience  either, 
and  all  distinctions  between  law,  morality  and  ethics 
would  thus  be  removed.  Coercion  put  in  execution  by 
the  State  forms  the  absolute  criterion  of  law;  a  legal 
rule  without  legal  coercion  is  a  contradiction  in  terms, 
a  fire  which  does  not  bum,  a  light  that  does  not  shine.^* 
Whether  this  coercion  is  put  into  execution  by  the 
court  (civil  and  criminal  court)  or  by  the  administrative 

^^  And  yet  one  of  our  most  famous  jurists  has  not  recoiled  from  this 
monstrous  idea  of  a  legal  rule  without  legal  coercion.  Puchta, 
"Pandekten,"  §  11,  note  g,  thinks  that  when  legislation  removes 
custom  as  a  source  of  law,  the  consequence  merely  is  that  "it  is  de- 
prived of  its  effect  upon  the  judge."  Customary  law,  therefore, 
according  to  him,  continues  to  subsist  as  law;  only  the  judge  does 
not  apply  it!  You  might  as  well  say,  when  fire  is  extinguished  by 
water,  it  still  remains  fire,  only  it  does  not  burn.  Burning  is  no 
more  essential  for  fire  than  is  for  law  the  judge's  enforcement  of  its 
observance.  What  misled  Puchta  was  the  possibility  above  men- 
tioned of  a  voluntary  obedience  to  norms  within  a  definite  sphere. 
If  this  were  sufficient  to  lend  the  norm  the  character  of  a  legal  rule, 
then  the  norms  of  forbidden  association  would  also  be  le^al  rules. 


242  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

authorities  is  indifferent.  All  rules  which  are  realized 
in  tliis  way  are  law,  all  others,  even  though  they  are 
actually  followed  in  life  ever  so  inviolably,  are  not  law; 
they  become  law  only  when  there  is  added  to  them 
the  external  element  of  political  coercion. 

But  there  is  an  objection  against  the  conception  devel- 
oped here  which  has  often  been  raised,  and  which  seems 
to  prove  it  entirely  untenable.  The  criterion  of  the 
organization  of  coercion  for  the  realization  of  law  fails 
entirely  in  International  Law,  and  in  another  division, 
namely  in  Public  Law,  it  fails  at  least  in  so  far  as  con- 
cerns the  duties  of  the  monarch  within  an  absolute  or 
constitutional  monarchy.  The  observance  of  the  limits 
which  the  constitution  places  upon  the  sovereign,  and 
the  fulfilment  of  the  duties  which  it  imposes  upon  him 
are  not  secured  by  coercion. 

What  attitude  must  the  theory  of  law  take  up  in 
relation  to  these  facts?  It  may  pursue  three  different 
courses.  The  first  consists  in  completely  denying  to 
international  law  and  the  above-mentioned  regula- 
tions of  public  law  the  character  of  legal  rules,  for  the 
very  reason  that  they  cannot  be  enforced,  and  allowing 
them  only  that  of  moral  precepts  and  duties.  This 
course  was  actually  taken  by  some,  but  the  view  is 
altogether  mistaken  according  to  my  opinion.  It  is  not 
only  in  contradiction  with  linguistic  usage,  which 
denominates  those  rules  uniformly  among  all  peoples 
as  laws,  but  it  misunderstands  also  their  nature,  which 
language  clearly  appreciates.  All  those  rules  make  the 
same  claim  upon  unquestioning  observance  as  all  other 
legal  rules,  and  their  disregard  is  felt,  like  the  disregard 
of  the  latter,  as  a  violation  of  law,  and  not  merely  as  im- 
moral conduct.  That  this  conception  is  true  can  be 
seen  in  the  manner  of  the  popular  reaction  against  a 
violation  of  their  rights.     War  and  uprising,  which  are 


§.10]      SOCIAL  MECHANICS— COERCION        243 

the  means  used,  are  the  forms  of  self-help  in  public  law 
which,  in  default  of  legal  protection,  the  people  in  de- 
fence of  their  rights  take  into  their  own  hands,  as  the 
individual  did  for  a  similar  reason  in  former  times  in 
defence  of  his  private  rights.  For  the  legal  character 
of  international  law  speaks  also  the  circumstance  that 
agreements  of  nations  are  not  infrequently  placed  under 
the  guarantee  of  third  disinterested  powers,  a  thing 
which  would  have  no  sense  at  all  in  moral  obligations. 
There  is,  besides,  the  circumstance  that  the  decision  of 
national  disputes  is  not  infrequently  given  over  to  the 
judicial  arbitration  of  a  third  power;  and  a  judge,  even 
an  arbitrator,  presupposes  a  legal  matter  and  a  law 
according  to  which  the  question  is  to  be  decided.  The 
legal  character  of  international  law,  as  well  as  of  the 
constitutional  regulations  concerning  the  monarch, 
cannot  be  an  object  of  doubt. 

Whereas  this  view,  in  order  to  save  the  element  of 
coercion  in  the  concept  of  law,  completely  denies  those 
rules  the  character  of  legal  propositions,  a  second  view, 
in  order  to  retain  this  character,  lets  the  element  of 
enforceability  fall  in  the  concept  of  law.  The  former 
sacrifices  the  element  of  law,  the  latter  that  of  coercion. 
Where  this  view  leads  has  been  shown  above.  The  charac- 
teristic mark  of  distinction  between  the  rules  of  law  and 
those  of  ethics  and  morality  is  in  this  way  destroyed; 
under  the  broad  point  of  view  of  generally  recognized  and 
actually  followed  rules,  which  is  common  to  them  all, 
all  the  three  fuse  into  a  homogeneous  mass,  into  a  soft 
pulp. 

The  third  course,  which  I  regard  as  the  only  correct  one, 
consists  in  holding  firmly  to  coercion  as  an  essential 
requirement  of  law,  but  with  this  must  be  combiried  the 
knowledge  that  the  organization  of  it  in  those  two  cases 
meets   with    obstructions    which    cannot  'be   overcome. 


244  THE   CONCEPT  OF   PURPOSE    [Ch.  Vlll 

The  organization  of  coercion  cannot  keep  equal  pace 
here  with  the  legal  rule;  the  latter  has  the  same  form 
conceptually,  and  makes  the  same  claim  upon  unques- 
tioning obedience  practically  as  everywhere  else;  but 
coercion  remains  behind  the  rule.  If  it  desires  to  become 
active  in  order  to  realize  the  rule  practically,  it  finds 
itself  limited  to  the  imperfect  form  which  it  bore  origi- 
nally, but  which  everywhere  else  has  made  room  for  the 
perfect  form;  it  can  only  use  unregulated  unorganized 
force.  But  just  in  this,  in  the  self-help  of  nations  for 
the  purpose  of  maintaining  their  rights,  is  found  the  con- 
nection of  the  two  elements  of  law,  the  inner  one  of  rule 
and  the  outer  one  of  coercion.  And  he  who  does  not 
hesitate  to  date  back  with  me  the  existence  of  law  even 
to  the  epoch  of  self-help  and  law  of  might,  which  was 
once  lived  by  all  nations,^*  will  not  be  in  doubt  how  to 
judge  the  above  phenomena.  There  are  cases  in  which 
law  can  absolutely  not  create  the  organization  of  coer- 
cion which  it  ordinarily  strives  after.  In  international 
law  this  would  presuppose  the  formation  of  a  superior 
court  above  the  particular  nations,  from  which  they  would 
have  to  take  the  law,  and  which  would  have  the  power  as 
well  as  the  good  will  to  carry  out  its  sentence  with  armed 
force  if  necessary.  We  have  only  to  think  the  matter 
out  clearly  to  be  convinced  of  the  complete  impractica- 
bility of  the  idea.  What  States  are  to  hold  this  ofiice; 
which  will  make  them  judges  of  the  world?  The  idea 
would  be  wrecked  at  the  outset.  And  suppose  the  judges 
themselves  came  into  conflict  with  one  another.  Where 
would  the  whole  central  force  be?  It  would  dissolve 
itself.  The  case  is  no  different  in  public  law.  The 
highest  bearer  of  force,  who  is  to  coerce  all  the  other 
bearers  of  the  same  standing  under  him,  cannot  again 

'*  I  proved  it  for  the  oldest  Roman  law  in  my  "Geist  des  romischen 
Rechts,"  Vol.  I,  §  11. 


§10]      SOCIAL  MECHANICS— COERCION        245 

have  another  above  himself  to  coerce  him.  At  some 
point  in  the  political  coercing  machine  there  must  be 
a  limit  to  being  coerced,  and  coercing  alone  remain,'* 
just  as  conversely  at  some  other  point  coercing  must 
cease,  and  being  coerced  alone  remain.  In  all  other 
organs  of  the  State  force  being  coerced  and  coercing 
coincide;  they  receive  their  impulses  from  above  and 
continue  them  down,  just  as  in  clock-work,  where  one 
spring  drives  the  other.  But  the  clock  cannot  wind 
itself  up;  for  this  there  is  need  of  a  human  hand.  This 
hand  is  in  a  monarchical  form  of  government,  the  monarch ; 
it  sets  the  whole  wheel-work  in  motion;  he  is  the  only 
person  in  the  State  who  coerces  without  being  himself 
coerced.  We  may  limit  his  power  ever  so  much,  nega- 
tively, by  a  constitution  (counter-signature  and  respon- 
sibility of  the  ministers,  constitutional  oath  of  the  ser- 
vants of  the  State,  etc.),  and  we  may  positively  try  to 
secure  on  his  side  obedience  to  the  laws  by  means  of  the 
moral  guarantee  of  an  oath  on  his  part  to  uphold  the  con- 
stitution, but  positive  legal  coercion  against  him  is  an 
impossibility;  for  he  holds  the  same  position  in  the 
State  as  the  general  in  battle.  The  latter  would  not  be 
general  if  another  had  power  over  him  —  there  is  no 
higher  point  above  the  highest,  as  there  is  no  lower 
below  the  lowest. 

The  impossibility  of  having  his  political  duties  en- 
forced, which  characterizes  the  status  of  the  monarch, 
is  found  also  in  other  positions,  for  example  in  that  of 
jurymen  in  reference  to  the  duty  imposed  upon  them  to 

"  The  practical  Romans  recognized  it  correctly.  -  They  allowed  no 
judicial  coercion  against  the  bearers  of  the  State  force,  viz.,  the  judges, 
as  long  as  they  were  in  office.  Cell.  XIII,  13,  "neque  vocari,  neque, 
si  venire  nollet,  capi  atque  prendi  salva  ipsius  magistratus  majestate 
posse."  D.  2.  4.  2,  ''In  jus  vocari  non  opurtet  .  .  .  magistratus, 
qui  imperium  habent,  qui  coercere  aliquem  possunt  et  jubcre  in 
carcerem  duci." 


246  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

judge  according  to  their  conviction.  For  conviction 
and  conscience  there  is  no  control  and  therefore  no  coer- 
cion; the  only  guarantee  of  which  the  law  can  make  use 
for  this  duty  is  the  oath.  Must  it  for  this  reason  be 
designated  as  moral?  The  institution  of  the  jury  is  a 
legal  institution,  and  that,  too,  of  the  very  first  rank; 
the  fundamental  idea  is  legal  purpose,  and  all  other  regu- 
lations which  are  intended  to  bring  about  the  realiza- 
tion thereof  bear  without  doubt  the  character  of  legal 
rules.  According  to  intention,  therefore,  the  idea  of  legal 
duty  is  applicable  also  to  the  obligation  of  jurymen. 
Like  the  obligation  of  the  monarch  in  a  monarchical  gov- 
ernment, it  forms  the  conclusion  of  the  entire  institution, 
the  highest  point  which  the  idea  of  purpose  reaches  within 
it;  but  here  again  coercion  remains  behind  the  idea  of 
law,  not  indeed  because  it  would  not  like  to  follow  it, 
but  because  it  cannot. 

We  arri\  e  therefore  at  the  result  that  there  are  points 
within  the  legal  order  where  coercion  fails.  If  we, 
nevertheless,  confer  the  character  of  legal  rules,  laws, 
upon  the  rules  which  legislation  lays  down  in  reference 
to  them,  it  is  because  of  a  double  consideration:  first, 
because  the  entire  institution  of  which  they  form  only  a 
small  part  is  of  a  legal  character,  and  then  because 
according  to  the  intention  of  the  legislation  they  lay  claim 
to  the  same  unquestioning  regard  and  validity  as  are 
realized  in  all  other  rules  by  means  of  coercion.  The 
monarch  who  violates  the  constitution,  the  juryman 
who  condemns  or  acquits  the  accused  against  his  better 
knowledge,  transgresses  against  the  law,  not  against 
morality;  though  the  law  cannot  reach  them. 

§  11.  The  Law — The  Element  of  Norm.  The  sec- 
ond element  of  the  concept  of  law  is  norm  (p.  240) ; 
the  latter  contains  the  inner  side  of  law,  coercion  the 
outer. 


Sli]      SOCIAL  MECHANICS— COERCION        247 

The  content  of  norm  is  an  idea,  a  proposition  (legal 
rule),  but  a  proposition  of  a  practical  kind,  i.e.,  a  direc- 
tion for  human  conduct.  A  norm  is  therefore  a  rule 
according  to  which  we  should  direct  ourselves.  The 
rules  of  grammar  come  also  under  this  concept.  They 
are  distinguished  from  norms  by  the  fact  that  they  do 
not  concern  conduct.  Directions  for  conduct  are  con- 
tained also  in  propositions  derived  from  experience  con- 
cerning the  element  of  purpose  in  conduct,  viz.,  maxims. 
Norms  are  distinguished  from  the  latter  by  the  fact  that 
they  are  of  a  binding  nature.^'  Maxims  are  guidances 
for  free  conduct ;  their  observance  is  placed  in  the  judg- 
ment of  the  agent  himself;  that  of  the  norm  is  not;  it 
designates  a  direction  for  another's  will,  which  he  should 
follow,  i.e.,  every  norm  is  an  imperative  {positive  —  com- 
mand, negative  —  prohibition) .  An  imperative  has  mean- 
ing only  in  the  mouth  of  him  who  has  the  power  to  impose 
such   limitation  upon  another's  will;^^   it  is  the  stronger 

^  The  language  expresses  the  idea  of  binding  in  this  relation* 
German  "Verbindlichkeit"  (legal  bond,  [from  "binden,"  to  bind]), 
Latin  "obligatio"  (from  "ligare"  —  to  bind),  the  old  Roman  "nexum" 
(from  "nectere"  —  to  bind),  " contrahere"  (to  draw  the  band  to- 
gether, tighten),  "solvere"  (to  loosen  it),  ''jus"  (=  that  which  binds, 
from  the  Sanskrit  root  "ju"  —  to  bind,  tie;  see  my  "Geist  des 
romischen  Rechts,"  Vol.  I,  p.  218,  4th  ed.)- 

^  The  idea  of  imposition  is  expressed  in  the  language.  In  Latin  in 
"lex"  (leg-ere  —  to  lay;  "lex  publica"  —  "Gesetz"  [something  set 
Joww,  statute];  "lex  privata"  —  "Auflage"  [something  imposed,  an 
order]  in  a  will  or  contract);  in  "imperare"  ("endo  parare" — to 
impose;  the  imperative  refers  linguistically  as  well  as  actually  to  an 
"imperium"),  German  "Auflage"  (imposition,  injunction),  "Obliegen- 
heit"  (that  which  is  imposed  or  incumbent  upon  one,  a  duty).  For 
the  relation  of  dependence  on  the  part  of  the  subordinate  party  the 
language  makes  use  of  the  terms  "horen"  (to  hear),  "horchen"  (to 
hearken).  Thus  "die  Horigen"  (bondsmen),  "gehorsam"  (obedient), 
"gehorchen"  (to  obey).  Similarly  in  Latin  "obedire"  from  "audire." 
Transferred  from  persons  to  things  in  "das  Gehoren"  (belonging  to) 
=  the  thing  belongs  to  me. 


248  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

will  that  designates  the  line  of  conduct  for  the  weaker. 
An  imperative  presupposes  a  double  will;  it  passes  from 
a  person  to  a  person;  nature  herself  knows  no  impera- 
tives. According  as  the  imperative  merely  designates 
conduct  in  a  particular  case,  or  a  type  of  conduct  for 
all  cases  of  a  certain  kind,  we  distinguish  concrete  and 
abstract  imperatives.  The  latter  coincide  with  norm. 
Norm  is  accordingly  to  be  defined  as  an  abstract  impera- 
tive for  human  conduct. 

The  ethical  world-order  contains  three  classes  of  such 
abstract  imperatives:  of  law,  of  morality,  and  of  ethics. 
What  is  common  to  them  is  the  social  purpose ;  all  three 
have  society  as  the  subject  of  their  purpose,  and  not  the 
individual.  With  reference  to  this  purpose,  I  call  them 
social  imperatives.^^  In  morality  and  ethics  these  are 
laid  down  as  well  as  realized  by  society;  in  law  these  two 
functions  are  exercised  by  the  State,  the  former  regularly, '^^ 
the  latter  exclusively.  The  difference  between  the  impera- 
tives of  the  law  and  those  of  morality  and  ethics  is  that 
the  former  have  the  element  of  external  coercion  con- 
nected with  them  by  the  power  of  the  State  and  adminis- 
tered by  the  same. 

All  coercion  presupposes  two  parties:  the  one  who 
coerces  and  the  one  who  is  coerced.  To  which  one  of 
these  is  the  coercive  norm  of  the  State  directed?  The 
question  has  been  raised  by  criminologists  with  special 
reference  to  criminal  laws,  and  has  received  a  three-fold 
answer  from  them ;  ^^  the  people,  the  judge,  the  State. 

The  latter  view  would  presuppose  that  one  can  direct 
an  imperative  against   oneself.     This  is    incompatible 

^  More  of  this  in  Ch.  IX,  Vol.  II,  p.  105,  227,  238. 

^  Modified  by  customary  law  so  far  as  its  validity  is  not  excluded 
by  legislation. 

*i  See  further  concerning  it  in  Binding,  "Die  Normen  und  ihre 
Ubertretung,"  Vol.  I,  p.  6  and  fl.  (Leipzig,  1872). 


ill]      SOCIAL  MECHANICS— COERCION        249 

with  the  concept  of  an  imperative,  which  presupposes 
(p.  248)  two  opposing  wills  —  a  stronger  and  a  weaker. 
The  idea  which  gave  occasion  to  this  view  is  the  obliga- 
tion incumbent  upon  the  State  and  recognized  by  it  to 
prosecute  and  punish  crime;  but  the  form  of  expression 
is  mistaken. 

One  may  resolve  firmly  to  do  some  thing,  and  carry  out 
one's  resolution  inviolably,  and  even  acknowledge  to 
another  one's  obligation  to  do  it,  but  the  concept  im- 
perative cannot  be  applied  to  it  without  destroying  it; 
imperatives  to  oneself  are  a  contradiction  in  terms. 

There  remain  therefore  the  people  and  the  judge  or, 
since  we  extend  our  circle  of  vision  to  the  whole  law, 
including  police  and  administrative  law,  the  State 
authorities.  To  which  of  these  does  the  law  direct  its 
imperatives?     Or  are  they  perhaps  directed  to  both? 

It  is  clear  in  the  first  place  that  there  are  imperatives 
which  are  directed  exclusively  to  the  authorities.  The 
regulations  which  govern  the  organization,  the  manage- 
ment and  the  jurisdiction  of  the  authorities,  have  nothing 
to  do  with  the  private  person,  and  though  in  some  of 
these  one  has  the  right  to  protest  or  complain  against 
their  disregard,  there  are  also  other  regulations  in  which 
this  is  not  the  case;  where  obedience  is  secured  only  by 
the  right  of  supervision  and  review  on  the  part  of  superior 
authorities.  The  political  coercion  for  the  realization 
of  all  these  imperatives  (laws,  ordinances),  whether  those 
issued  by  legislation  or  by  the  State  force,  takes  place 
altogether  within  the  coercive  machinery  of  the  State; 
it  is  the  working  of  the  machine  within,  without  any  exer- 
tion of  force  on  the  outside. 

Over  against  these  purely  internal  coercive  norms,  as 
I  shall  call  them,  are  the  external,  the  effectiveness  of 
which  shows  itself  passively  in  the  private  person,  who 
is  held  to  their  observance  on  the  appeal  of  another 


250  THE   CONCEPT   OF   PURPOSE    [Ch.  viii 

private  person,  or  on  the  initiative  of  the  State  force 
itself  by  a  threat  of  coercion  or  of  punishment.  They 
find  therefore  their  practical  object  without  doubt  in 
the  private  person ;  the  latter  is  to  be  enjoined  to  act  or 
forbear  in  accordance  with  the  norm.  In  this  sense, 
therefore,  we  can  say  that  they  are  directed  to  the 
people. 

But  there  are  doubtless  many  legal  regulations  which 
direct  no  imperatives  at  the  private  person,  either  in 
respect  to  their  form  or  content,*^  and  yet  they  are  in- 
tended to  be  applied  to  him  by  the  judge.  I  name  as  an 
example,  in  civil  law,  the  propositions  having  to  do  with 
the  development  of  legal  concepts ;  the  regulations  of  the 
age  of  majority;  concerning  the  influence  of  error  on 
acts  in  the  law;  concerning  the  interpretation  of  laws 
and  acts  in  the  law;  in  criminal  law,  the  regulations  con- 
cerning criminal  responsibility,  and  state  of  necessity. 
Where  is  coercion  here,  which  is  to  constitute  the  criterion 
of  all  legal  norms?  We  are  confronted  here,  it  seems,  by 
the  necessity  of  recognizing  that  there  are  legal  rules  which 
are  not  imperatives;  and  thus  our  whole  definition  of 
the  legal  norm,  which  identifies  it  with  an  imperative 
wielded  by  the  State  force,  would  fall  to  the  ground. 

But  the  imperative  shows  itself  here  also;  it  asserts 
itself  in  the  person  of  the  judge,  who  is  expected  to  apply 
all  these  norms.  Majority  and  minority  signify  this 
for  him  —  treat  the  one  who  is  of  age  differently  from 
the  minor;  compel  the  former  to  fulfil  the  contracts 
concluded  by  him  but  not  the  latter.  Error,  irrespon- 
sibility mean  this  —  do  not  compel  the  fulfilment  of  the 
contract,  or  the  carrying  out  of  the  punishment.  Inter- 
pretation  signifies  —  take   the  doubtful  words   in   this 

^  I  am  alluding  in  this  observation  to  the  possibility  of  divesting 
the  imperatives  of  this  form  by  raising  them  to  juristic  concepts. 
See  concerning  this,  my  "Geist  des  romischen  Rechts,"  3  §  41. 


§11]      SOCIAL  MECHANICS  — COERCION        251 

sense.  The  propositions  connected  with  the  develop- 
ment of  legal  concepts  signify  —  recognize  the  case  or 
the  crime,  or  do  not  recognize  it,  and  condemn  and  carry 
out  your  sentence  accordingly,  according  as  the  concep- 
tual elements  are  present  or  not. 

With  the  person  of  the  judge,  or,  more  properly,  of 
the  authorities,  who  carry  out  the  imperatives  of  the 
State,  we  have  reached  the  point  where  the  idea  of  coer- 
cion is  proven  to  be  absolutely  true  in  law,  and  valid 
without  exception.  The  criterion  of  all  legal  norms  is 
their  realization  through  coercion  by  the  State  authori- 
ties appointed  for  the  purpose;  whether  it  is  that  the 
upper  coerce  the  lower;  that  they  are  themselves  con- 
strained to  coerce;  that  the  judge  or  the  administrators 
coerce  the  private  person,  or  that,  as  in  monarchy,  the 
monarch  alone  coerces  without  being  himself  coerced. 
Considered  from  this  point  of  view  all  law  presents  itself 
as  a  system  of  coercion  realized  by  the  State;  as  the 
machinery  of  coercion  organized  and  wielded  by  the  State 
force.  All  norms  without  exception  come  under  this 
point  of  view ;  even  those  to  which  attention  was  called 
above  (p.  246)  in  reference  to  the  ruler  and  the  jury. 
There  coercion  fails  indeed  in  its  power  over  the  two 
latter,  but  they  concern  there,  too,  its  exercise  on  others. 

If  we  repeat  from  this  standpoint  of  our  considera- 
tion of  the  State  and  of  law  the  above  question :  To  whom 
are  the  imperatives  of  the  State  directed?  The  answer 
can  only  be:  to  the  organs  which  are  entrusted  with  the 
management  of  coercion;  from  the  monarch  and  the 
highest  pinnacles  of  the  hierarchy  of  officials  down  to  the 
lowest  levels.  Every  legal  rule,  every  political  imperative 
is  characterized  by  the  fact  that  some  bearer  of  political 
force  is  entrusted  with  its  practical  realization.  Coer- 
cion against  the  private  person,  though  it  belongs  to 
it,  is  an  unsafe  criterion  of  law;    coercion  which  any 


252  THE   CONCEPT  OF   PURPOSE    [Ch.  Vlii 

political  authority  exercises  either  within,  downward  or 
outward  is  an  absolutely  safe  one;  provided  that  the 
imperative  is  equal  to  the  requirements  which  the 
government  expects  of  it. 

All  such  imperatives  whether  concrete  or  abstract  are 
legally  binding  on  him  to  whom  they  are  directed;  he 
who  does  not  observe  them  sets  himself  in  opposition 
to  the  law.  All  State  decrees,  on  the  other  hand,  to 
which  the  State  itself  denies  this  enforceability  by  its 
authorities  are  not  imperatives  of  a  legal  kind.  They 
are  mere  announcements,  expressions  of  opinion,  invita- 
tions, desires,  requests  of  the  State,  even  if  they  appear 
in  abstract  form  in  legislation  in  the  midst  of  other  legal 
regulations.  Such,  for  example,  in  Oriental  law  books,. 
are  prescriptions  of  a  religious  and  moral  nature,  which 
are  not  legal  norms.  It  is  not  the  expression  of  a  norm 
by  the  State  that  lends  it  the  character  of  a  legal  norm, 
but  only  the  circumstance  that  it  obligates  its  organs  to 
carry  the  same  out  by  means  of  external  coercion.  A 
code  of  morals  or  a  catechism  compiled  by  the  State; 
a  direction  for  study  published  by  a  board  of  examiners; 
a  system  of  spelling  published  by  the  ministry  of  educa- 
tion, are  not  binding;  none  of  this  has  the  signification 
of  a  legal  norm.  Only  that  norm  can  lay  claim  to  a 
legal  title  whose  realization  by  means  of  coercion  the 
State  has  imposed  upon  its  organs. 

Our  result  is  therefore  that  the  criterion  of  a  legal  norm 
does  not  consist  in  its  external  effectiveness  in  the  direc- 
tion of  the  people,  but  in  its  internal  operation  in  the 
direction  of  the  State  authorities.  The  former  remains 
far  behind  the  latter;  and  we  shall  therefore,  if  we  wish 
to  express  the  concept  of  legal  norm  correctly  in  juristic 
terms,  not  go  wrong,  if  we  define  it  in  reference  to  its 
form  as  containing  an  abstract  imperative  directed  to  the 
organs  of  the  State  force.     And  the  external  effectiveness. 


§11]      SOCIAL  MECHANICS  — COERCION        253 

i.e.,  the  observance  of  the  same  on  the  part  of  the 
people,  as  far  as  there  is  occasion  for  it,  must  be  desig- 
nated from  this  purely  formal-juristic  point  of  view  (not 
from  the  teleological)  merely  as  secondary  in  comparison 
with  the  other  as  primary.  All  legal  imperatives  with- 
out exception  are  directed  in  the  first  instance  to  the 
authorities,  the  entire  civil  code,  the  criminal  code;  all 
finance  laws,  police  laws,  military  laws  and  ordinances, 
etc.,  are  nothing  but  regulations  for  the  management 
of  the  coercive  force  of  the  State.  But  so  far  as  the  latter 
is  put  actively  at  the  disposal  of  the  private  person  for  his 
interests  (private  criminal  prosecution),  or  so  far  as  it 
can  passively  be  put  into  execution  against  him  on  the 
basis  of  such  a  request  to  punish  an  offender  or  without 
one,  they  extend  their  operation  to  him  also;  they  vin- 
dicate him  and  they  obligate  or  bind  him.  In  reference 
to  the  purpose  of  such  norms  we  may  say  that  they  aim 
at  the  private  person ;  the  above  statement  that  in  form 
they  are  directed  solely  to  the  organs  of  the  State  force 
is  not  invalidated  thereby. 

But  not  all  legal  imperatives  of  the  State  force  are 
legal  norms;  we  must  rather  distinguish  between  con- 
crete and  abstract;  the  latter  alone  are  legal  norms. 
And  even  within  the  latter  we  have  to  point  out  a  dis- 
tinction which  is  of  the  greatest  importance  for  the 
complete  realization  of  the  idea  of  law  in  society.  It  is 
that  of  the  unilaterally  and  bilaterally  obligating  force  of 
the  legal  norm.  The  object  of  the  State  in  issuing  a 
legal  norm  can  be  only  to  bind  thereby  the  one  to  whom 
it  is  directed,  but  not  to  bind  itself;  so  that  it  reserves 
to  itself  the  privilege  in  a  particular  case  of  disregarding 
the  norm  if  it  so  chooses.  But  it  can  also  issue  the 
legal  norm  with  the  object  and  the  assurance  of  binding 
itself  thereby.  With  this  form  only,  if  it  is  actually 
observed,  the  law  reaches   its  complete  stage,  viz.,  the 


254  THE   CONCEPT   OF    PURPOSE    [Ch.  VIII 

certainty  of  an  unfailing  realization  of  the  norm  as  once 
laid  down. 

The  exposition  following  is  intended  to  show  these 
three  particular  stages  in  the  rise  of  the  political  impera- 
tive to  the  complete  form  of  the  legal  norm. 

First  Stage.  —  Individual  Command.  The  simplest 
conceivable  form  of  command  is  that  of  the  individual 
command.  Called  forth*  by  the  immediate  need  of  the 
particular  case,  by  the  impulse  of  the  moment,  it  emerges 
only  to  disappear  again  at  once,  exhausting  its  entire 
effect  in  the  particular  case,  without  leaving  a  trace 
behind.  A  force  which  we  think  as  limited  to  this 
form  of  command  must  always  first  will  itself  before 
setting  another's  will  in  action;  the  latter  is  related  to  it 
as  the  lifeless  instrument  which  does  not  move  unless  it  is 
played  by  some  one.  The  picture  which  this  lowest 
stage  of  the  political  imperative  presents  before  us  is 
that  of  the  constant  exertion  and  activity  of  force ;  force 
in  perpetual  motion,  solely  directed  to  the  moment,  to 
create  by  a  command  what  it  demands. 

The  concept  of  an  individual  command  does  not 
require  that  it  be  directed  to  a  single  individual.  Call- 
ing out  persons  of  a  certain  age  for  the  purpose  of  con- 
scription is  an  individual  command;  for  it  exhausts  its 
effect  in  and  with  this  particular  case,  and  does  not  hold 
good  for  the  following  year.  Whether  all  those  liable 
to  service  are  invited  singly  or  through  the  designation 
of  their  class,  by  means  of  an  announcement  affecting 
them  all,  is  conceptually  immaterial.  Conversely,  the 
circumstance  that  the  command  is  limited  to  a  single 
person  is  not  sufficient  to  make  it  an  individual  command. 
A  judicial  order  of  fine  or  imprisonment  is  directed  to  a 
single  person;  yet  it  is  not  an  individual  command,  for  it 
has  its  basis  not  in  a  free,  spontaneous  act  of  will  of  the 
State,  called  forth  solely  by  this  case,  but  in  a  previous 


§iil      SOCIAL  MECHANICS— COERCION        255 

abstract  volition  of  it  —  which  only  appears  here  in  con- 
crete form  —  viz.,  in  the  law.  Not  the  will  of  the  judge 
but  that  of  the  law  compels  the  debtor  to  pay,  and  sends 
the  criminal  to  prison;  the  judge  only  fills  out  the 
blank  which  the  legislator  drew  up;  his  command  is 
concrete,  but  not  individual.  The  concrete  is  the  correla- 
tive of  the  abstract,  the  individual  is  the  opposite  of  it; 
the  concrete,  regarded  in  its  generality,  is  called  abstract; 
the  abstract  in  its  realization  becomes  concrete.  He 
who  makes  use  of  the  expression  concrete  thereby  implies 
the  idea  that  corresponding  to  the  particular  which  he 
designates  in  this  way  there  is  a  universal  which  only 
appears  in  connection  with  it.  Conversely,  he  who 
makes  use  of  the  expression  abstract  implies  that  the 
universal  which  he  has  in  mind  can  become  actual  in  a 
particular  case.  But  on  the  other  hand,  he  who  desig- 
nates a  thing  as  individual  desires  to  express  in  that 
term  that  it  is  not  a  mere  repetition  of  a  type,  of  the 
abstract,  but  that  it  denies  it  in  some  point  which  is 
peculiar  to  it.  Applying  this  to  the  commands  of  the 
State  we  say  then  that  only  those  are  to  be  designated 
as  individual  which  concern  in  a  particular  case  a  regu- 
lation not  already  provided  for  in  an  abstract  way,  or 
laid  down  as  necessary  by  the  law,  but  based  upon  the 
free  and  spontaneous  volition  of  the  State  force.  The 
individual  commands  of  the  State  stand  therefore  on 
the  same  line  as  the  abstract ;  both  have  as  their  source 
and  presupposition  the  same  moving  force  of  the  State. 
Only  the  scope  within  which  they  are  active  is  different ; 
in  the  former  it  is  the  temporary  instance,  in  the  latter 
the  permanent  relation;  there  it  individualizes,  here  it 
generalizes.'^^     Our  German   legal   phraseology  does  not 

*' The   latter  expression  is  used   by  the  Roman  jurist  in  D.   1. 
3.  8,  "Jura  non  in  singulas  personas,  sed  generaliter  constituuntur." 


256  THE   CONCEPT  OF   PURPOSE    [Ch.  Vlli 

express  this  conceptual  contrast,  whereas  the  Roman  did 
so  early,  i.e.,  it  comprehended  it  consciously/'* 

The  expressions  which  our  German  legal  terminology 
presents,  mz.,  statute  ("Gesetz"),  ordinance  ("Verord- 
nung"),  enactment  ("Verfiigung"),  are,  in  accordance 
with  the  application  which  usage  makes  of  them,  indiffer- 
ent for  the  above  distinctions.  At  the  same  time  the 
language  itself  seems  to  have  had  in  mind  the  idea  of  the 
abstract  in  the  formation  of  the  first  two,  and  that  of 
the  individual  in  the  third;  and  it  would  be  desirable 
that  usage  should  be  fixed  in  this  sense.  We  dispose 
("verfiigen")  of  things  or  persons,  over  whom  we  have 
power;  "verfiigen"  is  the  Latin  "imperare"  ;''^  the  fitting 
in,  adaptation  and  subordination  of  them  to  our  purposes. 
The  idea  which  the  language  has  in  mind  here  is  a  par- 
ticular act  of  the  use  of  force  which  is  spent  in  the  tem- 
porary purpose.  So  the  State,  too,  disposes  ("verfiigt") 
of  its  forces;  and  an  enactment  ("Verfiigung")  of  it 
would  therefore  be  linguistically  a  command  which  is 
exhausted  in  the  single  case.  In  this  sense  we  should 
have  to  designate  as  "enactments"  ("Verfiigungen") 
of  the  State  those  commands  which  do  not  consist  in  a 
simple  carrying  out  of  a  prescribed  legal  norm,  in  a  mere 
application  of  some  thing  already  laid  down  in  advance, 
but  which  are  based  upon  the  free  use  of  the  State  force 
adapting  itself  to  the  peculiar  relations  of  the  single  case. 

**  As  early  as  the  time  of  the  Twelve  Tables  we  meet  with  the 
opposition  between  "leges,"  by  means  of  which  the  Roman  people 
issued  a  general  ordinance,  and  the  "privilegia,"  by  means  of  which 
it  issues  an  individual  ordinance  for  or  against  a  particular  person, 
as  was  the  case  in  the  "testamenta  in  comitiis  calatis"  and  the 
"arrogationes."  The  opposition  is  found  again  in  the  Praetorian 
Edicts  in  the  form  of  "edicta  perpetua  jurisdictionis  causa  pro- 
posita"  and  "edicta  prout  res  incidit  proposita."  In  the  Imperial 
Constitutions  their  division  into  "constitutiones  generales"  and 
"personales"  comes  at  least  close  to  this  contrast. 

**  See  above  p.  24.5,  note  36. 


§1U      SOCIAL  MECHANICS— COERCION        257 

In  a  State  in  which  the  legislative  power  and  the  execu- 
tive are  not  combined  in  one  person,  that  is,  in  a  republic 
and  in  a  constitutional  monarchy,  in  contradistinction 
to  an  absolute  monarchy,  an  enactment  ("Verfiigung") 
which  is  opposed  to  the  existing  laws  is  possible  only  in 
the  form  of  a  law;  for  the  legislative  power  alone  is 
able  to  remove  out  of  the  way  the  obstacle  which,  in 
the  form  of  a  law,  stands  in  the  way  of  the  proposed 
measure.  The  statute  may  be  compared  to  the  "com- 
position" of  the  compositor  in  a  printing  establishment. 
Both  are  types  for  the  purpose  of  multiplication.  The 
particular  cases  of  the  statute  correspond  to  the  several 
impressions  of  the  printed  sheet.  If  it  is  intended  that 
in  a  particular  impression  a  given  passage  should  read 
differently  from  the  "composition,"  this  can  be  brought 
about  only  by  the  compositor's  changing  his  type  for 
this  particular  case.  The  same  thing  can  be  accom- 
plished in  law  in  a  legal  manner  only  by  the  legislature 
excluding  for  the  particular  case  the  legal  rule  which  ordi- 
narily would  apply  to  it,  and  substituting  another  for  it. 

Upon  this  is  based  the  concept  and  the  indispensable- 
ncss  in  State  law  of  the  individual  statute.  The  individual 
statute  shares  in  respect  to  its  validity  and  effect  the 
character  of  an  enactment  in  the  above  sense.  But 
whereas  the  latter  can  be  issued  by  the  executive  power 
of  the  government,  the  former  necessarily  presupposes 
an  act  of  the  legislative  power;  it  is  in  reality  a  law, 
though  not  abstract  but  individual;  and  it  is  required 
only  in  the  case  when  the  proposed  measure  is  incom- 
patible with  the  already  existing  law.  The  individual 
statute  is  "contra  legem,"  the  individual  enactment  is 
"secundum  legem." 

The  distinction  between  an  individual  statute  and  an 
individual  enactment  is  too  little  regarded  by  juristic 
theory.     If  it  were  properly  comprehended,  we  should 


258  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

not  meet  with  the  statement  that  individual  privileges, 
such  as,  for  example,  the  granting  of  concessions,  rights 
of  corporations,  etc.,  are  individual  statutes.  They  are 
such  only  when  they  are  opposed  to  the  existing  law ;  as, 
for  example,  a  change  in  the  succession  to  the  throne  in 
a  given  case,  or  the  prolongation  beyond  the  legal 
period  of  the  protection  of  copyright,  otherwise  not. 
The  former  I  am  in  the  habit  of  designating  as  adminis- 
trative privileges,  the  latter  as  legislative.  The  former 
can  be  issued  in  a  constitutional  monarchy  by  the  power 
of  the  State  alone,  the  latter  only  by  the  co-operation 
of  the  estates  of  the  realm.  In  reference  to  expropria- 
tion, both  forms  occur  in  different  States.  Where  legis- 
lation has  laid  down  definite  principles  concerning  ex- 
propriation, by  which  it  is  intended  that  the  government 
should  have  the  right  to  undertake  the  same,  (whether 
it  be  exclusively  through  the  administrative  authorities, 
or  in  co-operation  with  the  court),  the  undertaking  of  it 
contains  merely  a  particular  act  of  the  application  of  a 
law.  Only  where  this  is  not  the  case,  do  we  have  a  law 
of  expropriation. 

The  interest  which  the  individual  command  possesses 
for  our  present  purpose  consists  merely  in  the  fact  that 
it  contains  the  conceptual  introduction  to  the  norm. 
Taking  force  as  our  point  of  departure,  as  we  did  above, 
the  individual  command  presents  itself  as  the  first  and 
lowest  form  employed  by  force  to  establish  order.  It 
is  in  this  way  that  the  Romans  conceive  of  the  begin- 
ning of  their  communal  life,^^  and  this  is  the  meaning  of 
the  Roman  "imperium":  it  is  the  government  free  to 


**  So,  for  example,  the  description  of  the  jurist  Pomponius  in  D.  1. 
2.  2  §  1,  "Et  quidem  initio  civitatis  nostrae  populus  sine  lege  carta, 
sine  jure  certo  primum  agere  instituit,  omniaque  manu  a  regibus 
gubernabantur."     So     Tacitus,     "Annals,"     III,  26,    "...  nobis 


§11]      SOCIAL  MECHANICS— COERCION        259 

do  as  it  pleases;  the  personality  of  the  magistrate  in 
contradistinction  to  the  legislative  power  of  the  people. 
The  people  issue  the  abstract  commands,  the  bearer  of 
the  "imperium"  issues  the  individual  commands.^^  The 
history  of  the  political  development  of  Rome  exhibits 
in  quite  a  considerable  degree  this  contrast,  the  sphere 
of  the  "imperium"  becoming  constantly  smaller,  that 
of  the  "lex"  ever  larger.  Only  in  times  of  danger  does 
the  "imperium,"  in  the  form  of  the  dictatorship,  again 
temporarily  take  up  its  old  form. 

Second  Stage.  —  Unilaterally  Binding  Norm.  The 
individual  command  shows  us  force  in  a  state  of  con- 
tinual activity,  the  abstract  command,  the  norm,  shows 
it  to  us  in  a  state  of  rest ;  a  single  norm  takes  the  place 
of  thousands  upon  thousands  of  individual  commands; 
but  provision  for  the  obedience  of  the  command  is  the 
same  here  as  there. 

The  change  of  the  individual  command  for  the  norm 
brings  with  it,  therefore,  the  great  advantage  of  economy 
of  force,  of  convenience,  and  of  facilitation  of  labor;  and 
this  advantage  was  sufficiently  evident  to  bring  about  this 
progress  in  practice.  Self-interest  impelled  force  to 
substitute  for  the  imperfect  form  the  more  perfect,  viz., 
that  of  the  abstract  imperative.  Egoism  unnoticed 
guides  force  into  the  path  of  law. 

The  concepts  which  are  brought  to  light  by  this 
progress  are  those  of  norm,  statute  and  law;   and  here 

Romulus  ut  libitum  imperitavit,"  and  with  general  application  to  all 
peoples,  Justinus  I,  1,  "Populus  nullis  legibus  tenebatur,  arbitria 
principum  pro  legibus  erant." 

*'  This  is  also  the  original  contrast  between  "judicia  legitima,"  i.  e., 
"legis  actiones,"  and  "judicia  imperio  continentia,"  i.e.,  the  inter- 
national judgments  based  upon  the  individual  instruction  ("formula") 
of  the  "praetor  peregrinus,"  the  model  of  the  later  Roman  formu- 
lary procedure. 


260  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

our  next  aim  will  be  to  master  the  views  which  language 
has  expressed  in  these  terms. 

The  form  in  which  the  norm  makes  its  appearance  is 
its  statement  in  public.  This  is  demanded  by  the 
purpose  in  view;  for  that  which  is  intended  to  be  gen- 
erally observed  must  also  be  made  generally  known. 
Our  German  language  has  the  two  expressions,  statute 
("Gesetz")  and  ordinance  ("Verordnung").  The  former 
is  derived  from  the  idea  of  setting  ("setzen"),  and  is 
found  again  in  the  expression  "Satzung"  (statute).  What 
does  setting  here  mean?  Does  it  mean  the  public  set- 
ting, or  exposition  thereof,  so  that  every  one  may  see  it? 
The  element  of  publicity  is  in  no  way  indicated.  The 
idea  seems  to  me  to  be  rather  the  following.  Setting 
means  cessation  of  motion ;  that  which  is  set  down  is  at 
rest.  In  this  sense  language  uses  the  term  "Satz" 
(sentence)  of  a  thought  expressed.  In  order  that  the 
latter  may  be  brought  into  the  form  of  a  sentence 
("Satz"),  the  thinking  antecedent  to  it,  the  search  for 
the  thought  or  the  terms,  in  other  words,  the  intellectual 
motion,  must  have  reached  its  conclusion.  In  the  sen- 
tence, thinking  comes  to  rest ;  it  has  gained  its  permanent, 
fixed  form.  The  same  idea  of  the  fixed,  of  that  which 
has  come  to  rest,  appears  again  in  "Gesetz"  [statute] 
(hence  also  "feslsetzen"  [to  lay  down  as  a  rule]),  and  in 
the  modern  "jus  positivum"  ("ponere"  to  place,  set). 
The  laying  down  of  the  rule  denotes  the  end  of  the 
search:  rest  in  contradistinction  to  previous  motion; 
with  the  statute  ("Gesetz")  force,  which  was  till  then 
continuously  in  motion,  is  set  at  rest.  A  related  figure 
is  that  of  setting  up  ("stellen"),  which  the  Latin  lan- 
guage uses  in  "statuere"  (hence  is  derived  "statuta," 
statutes),  and  "constituere"  ("constitutio"),  and  ours 
in  "feststellen"  (to  establish).  On  the  contrary,  in  the 
term  "legen"   (to  lay),  from  which  are  formed  "lex" 


8  11]      SOCIAL  MECHANICS— COERCION        261 

(law)  and  "Auflage"  (impost,  injunction),  language 
seems  to  have  had  in  mind  rather  the  idea  of  imposing 
("auferlegen")  than  that  of  simple  laying  down  ("hin- 
legen").  In  "Verordnung"  (ordinance)  it  seems  to 
have  thought  not  so  much  of  the  original  establishment 
of  order  ("Ordnung"),  as  rather  of  the  perfection  of  the 
same;   to  which  "Verordnung"  adds  something. 

The  content  of  the  law  is  formed  by  a  norm  or  rule. 
Both  terms  point  to  the  same  idea,  viz.,  determining  the 
direction  to  be  followed.  "Norma"  is  a  square;  "norma 
juris"  is  a  legal  rule.  The  word  "regere,"  to  determine 
the  direction,  has  shown  itself  extraordinarily  fruitful 
for  legal  terminology  in  Latin  as  well  as  in  the  modern 
languages.  "Regula"  is  the  impersonal  rule,  "rex"  the 
personal;  "rectum"  is  that  which  keeps  the  right  direc- 
tion, the  straight.  From  this  is  derived  the  German 
"Recht,"  whereas  the  Romance  languages  borrow  the 
designation  of  law  (Recht)  from  the  compound  "diri- 
gere"  ("directum,"  "diritto,"  "droit");  also  the  Ger- 
man word  "rich ten,"  which  is  the  Latin  "regere"  in  form 
as  well  as  in  content.  The  idea  at  the  basis  of  the  word 
"richten"  is  that  of  the  way  which  every  one  has  to  fol- 
low; it  is  the  "way  of  law"  (legal  proceedings),  the  foot- 
path ("Richtsteig").  He  who  leaves  this  way  becomes 
guilty  of  an  "error"  ("Verirrung"),  a  "transgression" 
[misdemeanor]  ("Ubertretung") — he  transgresses  the 
law  in  stepping  beyond  the  right  way  ("delinquere," 
"delictum") — a  "lapse"  [offence]  ("Vergehen"),  he  goes 
astray,  and  the  judge  ("Richter")  is  there  to  show  him 
the  right  way.  He  is  judged  ("gerichtet")  by  being 
guided  back  in  the  right  direction  ("richtige  Richt- 
ung").  In  "crime"  ("Verbrechen")  alone  language  has  in 
mind  not  the  direction,  but  the  order;  "Verbrechen" 
(crime)  is  the  breaking  ("brechen")  of  the  civil  order. 

All  the  concepts  above  mentioned  have  that  of  the 


262  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlli 

norm  as  their  presupposition.  The  law  sets  it  up.  The 
judge  applies  it.  Law  comprehends  all  the  norms.  Of- 
fence, crime,  misdemeanor,  disregard  them. 

Every  norm  contains  a  conditioned  imperative,  and 
consists  therefore  always  of  the  two  elements,  the  con- 
ditioning (presuppositions,  facts  of  the  case)  and  the 
conditioned  (imperative).  A  norm  can  therefore  always 
be  rendered  by  the  formula,  if  .  .  .  then.  The  pro- 
tasis contains  the  motive  and  the  justification  of  the 
apodosis;  the  "if"  is  always  a  "because,"  containing 
the  reason  which  induced  the  legislator  to  the  given 
regulation .  The  proposition  that  when  a  "  filius  f  ami  lias  " 
contracts  a  debt  he  is  not  liable,  takes  the  following 
form  in  the  consideration  of  the  legislator,  viz.,  in  the 
peculiar  relations  of  the  "filius  familias,"!  see  a  reason 
which  excludes  his  responsibility  for  the  loan.  The 
norm  is  always  and  without  exception  directed  to  the 
authorities  entrusted  with  its  realization  (p.  252  f.),  who 
must  prove  for  this  purpose  whether  the  conditions  are 
present  in  the  given  case  (question  of  evidence) ,  and  then 
carry  the  imperative  into  execution.  A  norm  directed 
only  to  a  private  person  and  not  to  the  authorities  is  an 
absurdity.  It  is  an  absolute  criterion  of  every  legal 
rule  that  in  the  last  instance  the  authorities  are  always 
seen  to  be  behind  it,  enforcing  the  same  if  necessary. 

In  the  concept  of  the  norm  as  such  is  involved  the 
condition  of  binding  only  the  one  to  whom  it  is  directed, 
but  not  also  its  author.  He  who  lays  down  the  norm 
can  also  recover  it.  In  this  relation,  i.e.,  in  reference 
to  its  abstract  validity,  it  is  always  dependent  upon 
his  will  —  there  is  no  unalterable  law.  But  the  author's 
attitude  to  the  norm  as  long  as  it  subsists,  i.e.,  in  refer- 
ence to  its  concrete  realization,  is  a  different  matter. 
The  intention  with  which  he  issues  it  may  be  that  he 
means  to  refrain  from  any  encroachment  upon  it,  and 


§11]      SOCIAL  MECHANICS— COERCION        263 

hence  to  respect  the  norm  himself.  In  this  case,  when 
he  acknowledges  himself  as  bound  to  it,  I  designate  it 
as  a  bilaterally  binding  norm.  This  is  the  form  of  the 
norm  in  an  ordered  condition  of  law;  the  sovereignty 
of  the  law.  If  the  object  of  its  author  does  not  go  so  far 
as  to  grant  the  norm  this  security  of  realization  indepen- 
dently of  his  will ;  if  he  means  rather  to  bind  by  it  only 
those  upon  whom  he  imposes  it,  and  not  himself,  I  desig- 
nate it  a  unilaterally  binding  norm. 

This  is  the  shape  law  takes  in  the  stage  of  despotism. 
The  despot,  i.e.,  the  master  of  slaves,  as  language  charac- 
terizes him  (from  ttot,  "potestas,"  and  Sew  to  bind, 
hence  master  of  the  bound) ,  has  not  the  object  of  putting 
a  limit  upon  himself  by  means  of  the  norms  which  he 
issues;  he  rather  reserves  to  himself  the  privilege  to 
disregard  them  in  every  case  where  they  prove  incon- 
venient to  him.  Can  we  speak  of  law  at  all  in  such  a 
condition?  In  so  far  as  we  understand  by  law  merely 
a  sum  of  compulsory  norms,  yes.  In  so  far  as  we  apply 
the  standard  of  that  which  the  law  can  and  should  be, 
viz.,  the  assured  order  of  civil  society,  no.  But  the 
germs  of  the  law  in  the  latter  sense  are  after  all  already 
present  here  also.  I  mean  by  this,  naturally,  not  alone 
the  mere  form  of  it,  the  norm,  but  also  the  substantial 
element  of  the  law,  viz.,  the  purposes  which  it  has  to 
realize. 

These  are  first  order,  i.e.,  uniformity  of  social  action. 
It  may  be  interrupted,  it  is  true,  at  any  time  by  arbi- 
trary acts,  but  so  far  as  this  does  not  happen,  there  is 
already  order,  i.e.,  a  uniformity  of  action  regulated  by 
norms  and  secured  by  the  fear  of  authority. 

The  other  element  of  law  is  equality.  It  is  posited  in 
principle  in  the  norm  as  such ;  for  every  abstract  prop- 
osition is  based  upon  the  affirmation  of  the  equality 
of  the  concrete;    and  no  matter  how  arbitrarily  the  law 


264  THE  CONCEPT  OF   PURPOSE    [Ch.  Vlii 

of  tlie  despot  may  shape  the  particular  categories  for 
which  he  issues  his'  regulations,  within  a  particular 
category  he  proclaims  in  principle,  by  means  of  every 
law,  the  theory  of  equality.  To  be  sure,  he  is  free  to 
negate  it  in  applying  the  law,  but  the  fact  that  he  set 
it  up  himself  is  not  removed  thereby.  In  the  very  norm 
which  he  himself  tramples  under  foot  he  expresses  his 
own  sentence;  and  this  is  the  point  where  the  moral 
element  of  the  legal  norm  makes  itself  felt  for  the  first 
time  in  the  shape  of  fear  of  open  contradiction  with 
itself,  and  of  self-condemnation;  where  the  thought 
occurs  to  its  author  of  respecting  the  law  for  its  own 
sake.  At  the  moment  when  force  invites  the  law  to 
announce  its  commands,  it  opens  its  o^\^l  house  up  to 
the  law,  and  there  at  once  commences  a  reaction  of  law 
upon  force.  For  the  law  brings  with  it,  as  its  inseparable 
companions,  order  and  equality;  and  whilst  at  first 
merely  a  scullion  in  the  house  of  force  it  becomes  in  the 
course  of  time  the  major-domo. 

The  third  and  last  element  which  is  realized  by  the 
unilaterally  binding  norm  to  a  certain  degree,  though 
not  absolutely,  is  the  concept  of  right  in  the  subjective 
sense. 

Is  there  such  a  thing  in  despotism?  We  must  dis- 
tinguish between  the  merely  conceptual  possibility 
and  the  practical  actuality  of  it;  and  in  reference  to 
the  former  again  between  public  and  private  law.  A 
share  by  the  subjects  in  the  authority  of  the  State  is 
excluded  by  the  concept  of  despotism,  just  as  much  as 
a  share  by  the  slaves  in  the  authority  of  the  master  is 
excluded  by  the  concept  of  slavery;  despotism  knows 
no  rights  of  citizenship.  But  the  recognition  of  legal 
relationships  among  the  subjects  is  compatible  with 
tyranny  and  demanded  by  its  own  interest  in  estab- 
lishing and  maintaining  a  definite  system;   i.e.,  private 


§li]      SOCIAL  MECHANICS— COERCION        265 

law  is  theoretically  compatible  with  despotism.  It  is 
exactly  the  same  as  when  the  slaveholder  prescribes 
an  order  to  his  slaves  which  they  are  to  observe  in  their 
relations  among  themselves,  since  he  himself  is  interested 
therein. 

But  in  this  very  circumstance  lies  at  the  same  time  the 
imperfection  of  this  status.  Put  forth  solely  by  the 
interest  of  the  master,  his  order  remains  even  in  its  execu- 
tion in  constant  dependence  upon  him ;  the  slave  who 
complains  of  a  disturbance  of  order  in  his  person,  of  an 
injustice  done  him,  obtains  justice  only  so  far  as  the 
master  has  no  interest  in  denying  him  recognition.  In 
this  sense,  therefore,  there  is  no  private  law  in  despotism; 
it  lacks  the  security  for  its  realization,  which  it  obtains 
only  so  far  as  the  humor,  partiality,  or  avarice  of  the 
autocrat  do  not  oppose  it. 

One  might  suppose  that  this  danger  diminishes  in  the 
same  measure  as  the  personal  contact  of  the  despot 
with  his  subjects  becomes  more  difficult  and  less  frequent 
by  reason  of  the  extension  of  his  State's  domains;  and 
that  therefore  security  will  increase  with  the  size  of  the 
empire  and  distance  from  the  throne.  This  would  be 
true  if  the  tyrant  that  sits  on  the  throne  did  not  at  the 
same  time  occupy  the  judge's  bench.  As  the  master 
so  the  servant.  The  difference  is  only  that  the  former 
picks  out  preferably  the  great  for  his  prey,  and  the  latter 
principally  the  small.  The  former  spares  the  small 
because  they  do  not  tempt  him,  the  latter  spares  the 
great  because  he  fears  them.  Therefore  the  powerful 
find  themselves  relatively  safest  at  a  distance  from  the 
throne;  the  weak  in  its  proximity.  Security  under 
despotism  is  based  solely  upon  the  endeavor  not  to  attract 
attention  and  not  to  come  in  contact  with  the  autocracy ; 
it  is  the  security  of  the  deer,  which  depends  solely  upon 
not  being  discovered  by  the  hunter. 


266  THE   CONCEPT   OF   PURPOSE    [Ch.  VIll 

Under  such  conditions  the  development  of  the  feeling 
of  right  is  an  impossibility.  If  it  consisted  merely  in 
the  knowing  of  the  right  there  would  be  nothing  in  its  way, 
but  the  essence  of  the  feeling  for  right  consists  in  willing; 
in  the  energy  of  the  personality  that  feels  itself  to  be 
an  end  in  itself;  in  the  impulse  of  legal  self-assertion, 
which  has  become  an  irresistible  need,  a  law  of  life.  But 
the  elevation  of  the  feeling  to  this  power  is  a  matter  of 
deed,  and  that  too  not  of  the  individual  or  of  a  short  span 
of  time,  but  of  the  whole  nation  and  of  a  long  historical 
practice;  it  is  therefore  as  unthinkable  in  a  despotism 
as  the  growth  of  an  oak  on  a  bare  rock  —  soil  is  lacking. 
For  this  reason  also  there  is  no  advantage  in  a  few  indi- 
viduals becoming  familiar  with  this  fact  by  personal 
contact  with  a  foreign  country  or  by  a  knowledge  of  its 
literature;  it  only  serves  to  estrange  them  from  the 
conditions  which  they  find  at  home,  if  they  are  satisfied 
merely  to  know  this,  or  to  make  them  martyrs  if  they 
wish  to  carry  their  better  knowledge  out  into  practice. 
The  attempt  to  gain  the  multitude  for  their  cause  would 
be  as  hopeless  as  to  plant  an  oak  branch  on  a  bare  rock, 
or  to  introduce  the  palm  in  the  far  north;  in  the  hot- 
house it  may  flourish  but  not  in  the  open.  The  great 
multitude  under  a  despotism  knows  only  sentiments  of 
dependence,  submissiveness  and  subjection.  The  phil- 
osophy of  life  by  means  of  which  it  gets  along  with  the 
existing  conditions  takes  shape  in  a  policy  of  dull ,  unresist- 
ing resignation  to  the  inevitable,  which  spells  apathy. 
This  mood,  embodied  in  dogma,  is  fatalism;  the  necessity 
of  all  that  happens,  but  not  the  need  of  a  uniform  law 
which,  in  addition  to  dependence,  embraces  for  him  who 
knows  it  and  observes  it  also  independence  and  security. 
They  feel  nought  but  the  inevitableness  of  incalculable 
chance,  of  fate,  which  excludes  every  possibility  of  pro- 
tecting oneself  against  it,  and  leaves  nothing  but  blind 


§U]      SOCIAL  MECHANICS  — COERCION        267 

submission.  In  the  domain  of  law  we  designate  the 
condition  in  which  accident  rules  instead  of  law,  arbitrari- 
ness, and  we  pronounce  thereby  an  ethical  sentence  of 
condemnation  upon  it.  But  we  must  not  forget  that 
we  thus  apply  a  standard  which  is  foreign  to  the  stage 
to  which  we  transfer  it  (p.  192).  As  the  blind  man  who 
knows  not  light  can  have  no  idea  of  shadow,  so  neither 
can  he  who  knows  not  law  have  an  idea  of  arbitrariness; 
an  understanding  of  arbitrariness  presupposes  one  of 
law. 

Third  Stage.  —  The  Bilaterally  Binding  Force  of 
the  Norm.  We  have  adopted  above  (p.  240),  the  cur- 
rent definition  of  law  which  designates  it  as  the  sum 
of  the  valid  coercive  norms  in  a  State.  But  the  preceding 
discussion  has  shown  us  how  inadequate  the  two  ele- 
ments of  political  coercion  and  the  norm  are  to  bring 
about  that  condition  which  we  call  the  state  of  law. 
What  is  it  that  is  still  wanting?  The  element  emphasized 
above  under  the  name  of  bilaterally  binding  norm;  that 
the  authority  of  the  State  itself  should  respect  the 
norms  issued  by  it;  that  as  long  as  they  exist  it  should 
grant  them  actually  the  all-inclusive  validity  which  has 
been  in  principle  attributed  to  them.  Only  in  this 
way  is  chance  banished  in  the  application  of  the  norms ; 
and  in  place  of  arbitrariness  comes  uniformity,  security, 
reliability  of  the  law.  This  is  what  we  understand  by 
legal  order,  present  to  our  mind  when  we  speak  of  the 
sovereignty  of  right  and  law;  and  such  is  the  demand 
that  we  make  of  the  law  if  it  is  to  correspond  to  that 
idea  of  it  which  we  carry  within  us.  It  is  the  problem 
of  the  legal  State. 

Law,  therefore,  in  this  full  sense  of  the  word  means 
the  bilaterally  binding  force  of  the  statute;  self-subor- 
dination on  the  part  of  the  State  authority  to  the  laws 
issued  by  it. 


268  THE   CONCEPT   OF   PURPOSE  [Ch.  VIII 

Language  has  given  this  idea  a  still  sharper  turn  in 
the  concepts  of  arbitrariness  and  justice.  To  determine 
the  meaning  which  language  attaches  to  these  means  to 
present  the  popular  side  from  which  they  originated. 

He  who  orders  his  conduct  in  accordance  with  right 
or  law  acts  rightly  or  lawfully,  —  legally;  in  the  contrary 
case  he  acts  against  right  or  law,  unlawfully,  —  ille- 
gally; he  commits  a  violation  of  the  law,  an  injustice 
("Unrecht").*^  All  these  expressions  permit  of  applica- 
tion to  the  State  authorities  as  well  as  to  the  subjects. 
The  former,  too,  may  be  guilty  of  conduct  opposed  to 
right  or  law;  of  an  injustice.  But  the  State  authorities 
occupy  a  different  position  with  respect  to  law  from  the 
subject.  The  former  have  the  function  and  the  power 
to  realize  the  law,  i.  e.,  to  force  to  obedience  him  who  re- 
sists; the  task  of  the  subjects  is  exhausted  in  carrying 
it  out.  The  former  have  to  order  other  people's  acts  in 
accordance  with  the  law,  the  latter  have  to  order  only 
their  own;  the  former  have  to  command,  the  latter 
have  to  obey.  This  difference  in  position  lends  to  the 
injustice  which  the  State  authorities  commit,  in  contrast 
to  that  of  the  subject,  a  peculiar  character;  and  lan- 
guage has  felt  this  correctly  in  naming  it  arbitrariness. 
The  subject  who  transgresses  the  law  acts  illegally 
("gesetzwidrig"),  not  arbitrarily  ("willkiirlich").     Arbi- 

**The  corresponding  Latin  expressions  are  "justum,"  "injustum" 
"injuria"  from  "jus,"  "legitimum"  from  "lex."  "Rechtlich"  (just) 
has,  as  is  well  known,  a  different  sense,  similarly  "loyal"  formed  from 
"lex"  ("loi").  Both  of  these  express  the  inner  disposition  of  the 
will  in  harmony  with  the  purpose  of  the  law  —  the  intention,  in 
contradistinction  to  the  outer  observance  of  the  law,  legal  conduct  in 
accordance  with  the  law,  which  may  be  due  merely  to  the  knowl- 
edge of  the  coercion  which  will  follow  in  case  of  disobedience. 
The  just,  lo>al  man  acts  lawfully  from  his  inner  impulse,  even  when 
he  does  not  have  to  fear  the  law.  Loyalty  is  the  aim  of  the  law,  legal- 
ity is  only  a  preparatory  stage  thereto. 


§ir]      SOCIAL  MECHANICS  — COERCION        269 

trariness  is  the  injustice  of  the  one  placed  in  authority; 
it  is  distinguished  from  that  of  the  subject  in  that  the 
former  has  the  power  on  his  side,  whereas  the  latter  has 
it  against  him.     If  the  subject  instead  of  violating  the 
abstract  norm  acts  against  the  concrete  command  of  the 
person  in  authority,  he  makes  himself  guilty  of  a  viola- 
tion of  the  law,  of  disobedience.     Just  as  the  two  last 
expressions  cannot  be  applied  to  the  person  in  authority, 
so  the  expression  arbitrariness- — and  as  we  shall  see, 
that  of  justice  also  —  cannot  be  applied  to  the  subject. 
Etymologically  "Willkur"  (arbitrariness)  is  the  will 
which  chooses  its  own  content   ("kiirt"   from    "Kiir," 
"Kur"  —  choice),   hence   freedom   of   choice.     But   an 
essential  element  therein  besides  the  will  itself  is  the 
existence  of  a  law.     The  will  power  which  has  no  law 
over  it  is  not  arbitrary,  but  simply  power.     The  power 
of  the  will  becomes  arbitrary  only  when  the  law  appears 
at  its  side.     Hence  there  can  be  no  question  of  arbi- 
trariness in  the  history  of  law  in  the  stage  of  the  unilater- 
ally binding  power  of  the  legal  norm  (p.  267) ;   and  for 
this  reason  we  could  not  introduce  it  until  now.     As 
shadow  did  not  exist  before  light,  so  arbitrariness  did 
not  exist  before  law.     As  a  purely  negative  concept  it 
presupposes  the  opposite  of  law,  whose  negation  it  is, 
i.  €.,  it  presupposes  knowledge  on  the  part  of  the  people 
of  the  necessity  of  the  bilaterally  binding  force  of  the 
State  norms.     In  the  light  of  this  conception  the  con- 
dition above  described  of  the  stage  preparatory  to  law 
may  seem  to  us  like  the  rule  of  pure  arbitrariness,  but 
we  must  not  forget  that  we  introduce  into  it  in  this  way 
an  internal  element  which  was  foreign  to  it   (p.  192). 
The  negro  who  is  sold  by  his  prince  as  a  slave,  or  slaugh- 
tered in  the  celebration  of  a  festival,  does  not  feel  this  as 
arbitrariness,  but  as  a  mere  fact.     He  regards  the  power 
which  destroys  him  in  the  same  way  as  we  regard  the 


270  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

hurricane  or  the  hail  storm.  Only  he  feels  arbitrariness 
in  whom  the  feeling  of  right  is  alive,  and  in  the  same 
measure  as  it  is  thus  alive  within  him;  susceptibility  to 
arbitrariness  is  the  index  which  measures  the  develop- 
ment of  the  moral  force,  and  the  feeling  for  right. 

But  the  significance  of  the  term  "Willkiir"  (arbitrari- 
ness, free  will)  extends  further  than  I  have  assumed 
hitherto,  where  I  applied  it  only  to  disregard  of  the  law 
on  the  part  of  the  State  authorities.  Our  language 
uses  the  term  in  a  double  sense,  in  a  good  ("in  bonam 
partem")  and  a  bad  ("in  malam  partem")  sense.  In 
the  former  sense  it  is  used  for  an  action  which  the  law 
permits,  in  the  latter  for  an  action  which  it  forbids.  In 
a  physical  sense  we  call  a  voluntary  ("willkiirlich") 
movement  that  which  we  ourselves  undertake  of  our  own 
resolve,  and  not  nature  in  us.  The  contrast  which  we 
have  in  mind  in  this  connection  is  our  dependence  upon 
the  law  of  nature.  "Willkiir"  (option,  free  will)  in  this 
case  is  therefore  the  freedom  which  we  have  beside  the 
law  of  nature.  In  the  juristic  sense  our  older  legal 
terminology  used  the  expression  "Willkiiren"  for  the 
voluntary  agreements  of  communities,  corporations, 
etc.,  which  they  made  to  fix  the  relations  subject  to 
their  control.  "Willkiir"  in  this  case  was  therefore 
synonymous  with  freedom  beside  the  law;  the  concept 
was  equivalent  to  the  foreign  word  autonomy  now 
current  in  that  sense,  which  has  the  same  meaning  ety- 
mologically  (avrbs  vofios  —  a  law  unto  oneself).  Lin- 
guistically both  denote  the  same  idea;  "Willkiir"  in  the 
good  sense  and  autonomy,  both  mean  the  determination 
of  the  will  beside  the  law. 

In  contradistinction  to  this,  "Willkiir"  in  the  bad  sense 
(arbitrariness,  despotism)  must  be  defined  as  the  deter- 
mination of  the  will  against  the  law;  but  with  the  limita- 
tion that  it  is  the  determination  of  the  will  in  violation 


§lij       SOCIAL  MECHANICS  — COERCION        271 

of  the  law  on  the  part  of  the  one  who  commands,  and  to 
whom  the  very  power  which  he  possesses  leaves  free 
scope  beside  the  law.  The  scope  of  power  which  the 
will  possesses  beside  the  law  is  therefore  the  common  ele- 
ment in  which  the  two  meanings  of  the  term  coincide, 
and  this  is  what  the  language  had  in  mind  when  it  brought 
the  two  applications  under  one  concept  notwithstanding 
their  difference,  which  is  considerable  in  other  respects. 

It  is  in  the  latter  sense  that  we  use  the  expression,  as 
is  well  known,  not  merely  of  the  State  authorities,  but 
of  every  one  who  can  command,  i.  e.,  who  has  the  task 
and  the  power  of  establishing  order.  So  we  use  it  of 
the  father  in  reference  to  his  children  — we  accuse  him 
of  arbitrariness  when  he  shows  preference  to  one  child 
over  another,  or  when  he  punishes  it  without  cause. 
The  same  is  true  of  the  master  as  against  the  slave, 
of  the  teacher  as  against  the  pupil. 

But,  it  will  be  objected,  the  father  who  does  this  does 
not  transgress  any  law,  for  there  is  no  law  that  forbids 
him.  This  very  fact  shows  that  we  must  extend  the 
concept  of  law,  if  we  wish  to  retain  this  term,  from  the 
legal  to  the  ethical.  The  ethical  determination  of  the 
paternal  relation  prescribes  certain  norms  to  the  father, 
as  the  source  of  power,  to  which  he  is  bound  according 
to  our  ethical  feeling.  If  he  disregards  them,  we  desig- 
nate this  disregard  of  the  ethical  norms  by  the  same 
term  arbitrariness  as  we  apply  to  the  disregard  of  the 
legal  norms  by  the  bearers  of  political  authority. 

The  necessity  of  extending  the  conception  of  the  norm 
in  this  way  is  shown  in  the  political  relation  to  which 
we  now  return.  We  speak  not  only  of  arbitrary  deci- 
sions of  the  judge  and  arbitrary  acts  of  the  government 
where  we  apply  the  standard  of  positive  law,  but  also  of 
arbitrary  laws.  But  the  legislating  authority  does  not 
stand  like  the  judge  and  the  executive  power  under  the 


272  THE   CONCEPT   OF   PURPOSE    [Ch.  VIli 

law,  but  above  it.  Every  law  which  it  issues,  no  matter 
what  its  content,  is  in  the  juristic  sense  a  perfectly  legal 
act.  In  the  juristic  sense,  therefore,  the  legislature  can 
never  commit  an  arbitrary  act,  for  it  would  mean  that 
it  has  not  the  right  to  change  the  existing  laws;  which 
would  be  a  contradiction  within  the  legislating  power 
itself!  But  just  cis  the  father  is  bound  morally,  though 
not  legally,  to  use  the  power  entrusted  to  him  in  accord- 
ance with  the  meaning  of  the  paternal  relation,  so  is  the 
legislator  bound  to  use  his  power  in  the  interests  of 
society.  His  right,  like  that  of  the  father,  is  at  the  same 
time  a  duty;  for  him,  too,  demands  arise  from  the  task 
put  before  him  which  he  must  satisfy;  norms  which 
he  must  observe;  and  he,  too,  can  therefore  be  guilty 
of  misusing  the  power  entrusted  to  him. 

But  not  every  misuse  of  power  is  arbitrariness.  A 
bad  or  mistaken  law  is  not  yet  on  that  account  arbi- 
trary. A  thing  is  arbitrary  only  in  two  cases.  First 
in  such  decisions  as  are  in  their  nature  "free"  and  "posi- 
tive";  i.  e.,  such  as  require  a  regulation  not  prescribed  by 
general  legal  principles,  as,  for  example,  fixing  the  terms 
of  prescription.  Here  we  use  the  expression  in  the  good 
sense  mentioned  above,  viz.,  as  the  determination  of 
the  will  in  reference  to  a  point  concerning  which  the  will 
of  the  legislator  is  not  bound  by  the  principles  by  which, 
according  to  our  view,  he  should  allow  himself  to  be 
guided.  In  the  bad  sense,  on  the  other  hand,  we  use  the 
expression  arbitrary  of  those  legal  determinations  which 
imply  that  the  legislator,  according  to  our  opinion,  has 
set  himself  in  opposition  to  the  general  principles  of 
law.  In  this  case  we  raise  the  charge  against  him  that 
he  has  disregarded  the  norms  which  we  consider  as 
binding  upon  him.  We  also  use  the  expression  unjust 
as  meaning  the  same  thing.  The  category  of  arbitrary 
("wilkiirlich")  legal  determinations  embraces  therefore 


§11]      SOCIAL  MECHANICS  — COERCION        273 

two  entirely  different  kinds  of  acts:  positive  acts,  for 
which  there  is  no  binding  standard  according  to  our 
opinion,  and  unjust  acts,  in  which  the  standard  is  dis- 
regarded. 

With  the  expression  unjust,  which  we  have  purposely 
avoided  using  till  now,  we  introduce  a  concept  which 
stands  in  closest  connection  with  that  of  arbitrariness, 
viz.,  the  concept  of  justice  ("Gerecht").  Linguistically 
it  denotes  that  which  conforms  to  right  ("das  dem  Recht 
Gemasse").  If  we  apply  the  term  "Recht"  (right) 
in  the  juristic  sense  to  positively  valid  "Recht"  (law), 
"gerecht"  (just)  would  be  synonymous  with  "lawful" 
("gesetzlich"),  —  "in  accordance  with  law"  ("recht- 
massig").  Every  one  feels,  however,  that  it  also  bears 
a  narrower  sense.  No  one  says  of  the  subject  who  obeys 
the  law  that  he  acts  justly,  or  of  him  who  violates  it 
that  he  acts  unjustly.  He  who  has  to  obey  can  no  more 
act  justly  than  arbitrarily.  Only  he  can  do  either  of 
these  two  who  has  to  command,  i.e.,  who  has  the  power 
and  the  authority  to  establish  order  —  order  of  the 
State,  the  legislator  and  the  judge;  order  of  the  house, 
the  father ;  of  the  school,  the  teacher ;  in  short,  every  one 
in  authority  in  relation  to  his  subordinates.^^  The  Latin 
language  expresses  this  thought  properly  in  "justitia" 

^'Our  language  also  makes  use  of  the  expressions  "gerecht" 
(just,  correct)  and  "ungerecht"  (unjust,  incorrect)  in  a  wider  sense, 
which  does  not  interest  us  here,  namely  in  application  to  a  judg- 
ment (scientific,  esthetic,  ethical)  which  one  utters  concerning 
another  person  or  his  acts.  Here,  too,  the  decisive  characteristics 
of  the  concepts  emphasized  above  are  found  again,  namely,  in  the 
first  place,  the  superiority  of  him  who  judges  to  the  one  who  is 
judged  —  he  sets  himself  up  as  the  other  man's  judge,  he  places  him- 
self above  him  —  and  in  the  second  place,  the  assumption  that  he  is 
bound  to  certain  norms  which  must  lie  at  the  basis  of  his  judgment. 
If  he  observes  them,  he  judges  justly  ("gerecht"),  if  he  ignores  them, 
we  call  his  judgment  unjust  ("ungerecht"). 


274  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

{i.e.,  the  power  or  the  will  which  "jus  sistit,"  i.e., 
establishes  right  and  order),  whereas  our  German  word 
"Gerechtigkeit"  (justice)  does  not  emphasize  the  charac- 
teristic element.  Accordingly  justice  and  arbitrariness 
are  correlates.  The  former  denotes  that  the  person  who 
has  the  authority  and  the  power  to  establish  order  in 
the  circle  of  his  subordinates  agrees  to  be  subjected  by 
the  norms  to  which  we  regard  him  as  bound,  the  latter 
that  he  does  not.^° 

We  have  seen  above  (p.  271)  that  this  obligation  may 
be  of  two  kinds,  legal  and  moral.  For  the  judge  it  is  of 
the  former  kind,  for  the  legislator  of  the  latter;  the 
former  stands  beneath  the  law,  the  latter  above  it;  the 
former  is  directed  by  justice  ("rechtlich")  to  apply  the 
law,  and  he  is  just  ("gerecht")  if  he  does  it.  He  is  not 
reponsible  for  the  injustices  of  the  law  itself;  these  fall 
to  the  account  of  the  legislator.  For  the  latter,  who 
must  set  up  the  law  for  the  first  time,  the  standard  of 
justice  cannot  be  derived  from  the  law  itself;  he  must 
first  seek  and  find  justice  in  order  to  realize  it  in  the  law. 
It  is  desirable  to  express  in  language  this  bifurcation  of 
the  concept  of  justice;  and  the  nearest  expression  that 
offers  itself  is  that  oi  judicial  and  legislative  justice.  But 
the  concept  of  justice,  as  has  been  shown  above,  does 
not  coincide  with  that  administered  by  the  State.  The 
contrast  above  mentioned  cannot  therefore  be  named 
with  reference  to  institutions  which  belong  to  the  State 
only.  The  most  appropriate  designation  would  be  for- 
mal and  material  justice. 

The  former  alone  comes  within  the  scope  of  the  present 
investigation,  for  we  have  not  here  to  do  with  the  ques- 
tion whence  the  State  authorities  must  take^^  their  norms, 

^  A  slight  modification  follows,  p.  275. 

"  I  will  treat  this  question  in  connection  with  the  ethical  element 
(Chapter  IX). 


§11]      SOCIAL  MECHANICS— COERCION        275 

but  with  the  consideration  that  they  must  observe  the 
norms  which  they  themselves  set  up.  The  fact,  how- 
ever, that  a  proper  understanding  of  the  species  depends 
upon  a  knowledge  of  the  genus,  imposes  upon  me  the 
necessity  of  discussing  the  concept  of  justice  here,  at 
least  in  so  far  as  is  demanded  by  our  object. 

The  practical  aim  of  justice  is  the  establishment  of 
equality.  The  aim  of  material  justice  is  to  establish  *w- 
^grwa/  equality,  i.e.,  equilibrium  between  merit  and  re- 
ward, and  between  punishment  and  guilt.  The  aim  of 
formal  justice  is  to  establish  external  ec\\xd.\\ty ,  i.e.,  uni- 
formity in  the  application  of  the  norm  to  all  cases  when 
it  is  once  established.  The  solution  of  the  first  problem 
is,  in  the  State,  the  business  of  the  legislator.  But  he 
can  direct  the  judge,  where  the  conditions  permit  and 
demand  it,  to  apply  the  standard  of  internal  equilibrium 
himself.  In  this  case  it  assumes  the  character  of  a  for- 
mally binding  standard  for  the  judge.  The  problem  of 
the  judge  coincides  with  the  second  problem,  adminis- 
tration of  justice.  Why  it  is  his  problem  only,  and  not 
also  that  of  all  the  other  organs  which  are  entrusted  with 
the  execution  of  the  laws,  viz.,  the  government,  will  be 
shown  later. 

A  decision  of  the  judge  ("Richter")  which  conforms 
to  the  law  we  call  just  ("gerecht").  An  enactment  of 
the  administrative  authorities  in  a  similar  case  we  do  not 
call  just,  but  lawful.  In  the  contrary  case  we  pronounce 
-both  alike  arbitrary.  It  follows  from  this  that  arbi- 
trariness and  justice  are  not  simply  correlative  con- 
cepts; the  negative  does  not  here  coincide  with  the 
positive,  but  reaches  out  beyond  it.  The  concept  of 
justice  is  limited  to  those  authorities  for  whom  the 
determining  idea  is  equality  in  the  law,  viz.,  the  legis- 
lator and  the  judge.  The  concept  of  arbitrariness,  on  the 
other  hand,  permits  of  application  to  all  the  authorities 


276  THE   CONCEPT   OF   PURPOSE    [Ch.  Viii 

of  the  State,  to  every  administrative  board,  and  even  to 
the  executive  power  of  the  government.  The  latter  can 
act  arbitrarily,  when  it  obstructs  the  course  of  the  law, 
but  it  cannot  act  justly;  for  it  has  no  part  in  the  adminis- 
tration of  justice  (see  below).  Conversely  we  apply 
the  concept  of  justice  to  God,  whereas  the  idea  of  arbi- 
trariness is  incompatible  with  His  nature.  There,  arbi- 
trariness without  the  possibility  of  justice;  here,  justice 
without  the  possibility  of  arbitrariness :  the  two  concepts 
are  therefore  not  coincident. 

Is  the  concept  of  justice  then  based  upon  the  prin- 
ciple of  equality  in  the  law?  What  is  there  so  great  in 
equality  that  we  measure  the  highest  concept  of  right  — 
for  this  is  what  justice  is  —  by  it?  Why  should  law 
strive  after  equality,  when  all  nature  denies  it?  And 
what  value  has  equality  independently  of  any  particular 
content?  Equality  may  be  as  much  as  anything  else 
equality  of  misery.  Is  it  a  consolation  for  the  criminal 
to  know  that  the  punishment  which  has  overtaken  him 
will  also  strike  all  others  in  the  same  position?  The 
desire  for  equality  seems  to  have  its  ultimate  ground  in 
an  ugly  trait  of  the  human  heart;  in  ill-will  and  envy. 
No  one  shall  be  better  or  less  badly  off  than  I ;  if  I  am 
miserable,  every  body  else,  too,  shall  be  so. 

But  the  reason  we  want  equality  in  law  is  not  because  it 
is  something  worth  striving  after  in  itself,  for  it  is  not  so 
at  all.  We  see  to  it  that  with  all  the  equalizing  powers  of 
the  law  inequality  finds  its  way  back  again  by  a  thou- 
sand paths.  But,  indeed,  our  reason  for  wanting  it  is 
because  it  is  the  condition  of  the  welfare  of  society.  WTien 
the  burdens  which  society  imposes  upon  its  members  are 
distributed  unequally,  not  only  does  that  part  suffer 
which  is  too  heavily  laden,  but  the  whole  of  society. 
The  centre  of  gravity  is  displaced,  the  equilibrium  is 
disturbed,    and    the    natural    consequence    is    a    social 


§11]      SOCIAL  MECHANICS  — COERCION        277 

struggle  for  the  purpose  of  re-establishing  equilibrium; 
which  under  certain  conditions  becomes  a  highly  danger- 
ous menace,  and  is  always  a  shock  to  the  existing  social 
order. 

Leibnitz  finds  the  nature  of  justice  in  the  idea  of  sym- 
metry ("relatio  quaedam  convenientiae"),  and  illustrates 
it  by  comparing  the  "egregium  opusarchitectonicum."^^ 
But  the  symmetry  which  he  requires  seems  to  be  less 
the  practical  object  of  equal  distribution  of  gravity  and 
a  resulting  fixity  of  the  social  order  than  the  aesthetic 
satisfaction  of  the  feeling  for  beauty,  and  the  har- 
monious impressions  aroused  by  such  order,  as  in  the  case 
of  a  work  of  art.  But  where  it  is  not  a  question  of  beauty 
but  of  the  carrying  out  of  practical  purposes,  the  deter- 
mining point  of  view  is  not  the  aesthetic  but  the  prac- 
tical. Here  the  demand  for  equalization  can  be  justified 
only  by  proving  that  the  nature  of  those  purposes 
demands  the  same,  and  how  it  does  so.  We  must  prove, 
therefore,  how  the  problem  which  society  has  to  solve 
becomes  conditioned  by  the  realization  of  equality.  The 
Roman  "societas"  will  give  us  the  answer  to  this  question. 

The  Roman  jurists  recognize  the  principle  of  equality 
expressly  as  the  leading  point  of  view,  as  the  principle 
of  organization  of  the  "societas,"  yet  not  as  an  external, 
absolute,  arithmetical  equality,  which  would  assign  every 
participant  exactly  the  same  share  as  the  next  one.  For 
they  intended  an  internal,  relative,  geometrical  equality, 
which  measures  every  share  in  accordance  with  each 
one's  contribution.^^     Theirs  was  not  therefore  any  idea 

62  I  take  the  citation  (Leibn.  Theod.  I,  §  73)  from  Stahl's  "Rechts- 
philosophie,"  II,  1,  2d  ed.,  p.  253.  Stahl's  own  exposition  seems  to 
me  quite  mistaken. 

S3  D.  17.  2.  6,  78,  80.  To  establish  equality  in  this  sense  is  the  task 
of  the  "boni  viri  arbitrium,"  6  cit.  The  nature  of  "bonae  fidei 
judicium"  involves  it,  78  cit. 


278  THE  CONCEPT  OF   PURPOSE    [Ch.  viii 

of  abstract  equality  among  particular  individuals,  but 
that  of  equilibrium  between  the  stake  and  the  profit;  in 
other  words,  the  idea  of  the  equivalent  (p.  100)  in  special 
application  to  society.  A  society  which  desires  to  flour- 
ish must  be  sure  of  the  complete  devotion  of  the  par- 
ticular member  to  the  purposes  of  the  society;  and  in 
order  to  have  this  it  must  grant  him  the  full  equivalent 
for  his  co-operation.  If  it  does  not  do  so,  it  endangers 
its  own  purpose.  The  interest  of  the  injured  member 
in  the  carrying  out  of  the  common  purpose  becomes 
weakened,  his  zeal  and  energy  are  impaired,  one  of  the 
springs  of  the  machine  refuses  to  work,  and  finally  the 
machine  itself  comes  to  a  standstill.  Inequality  in  the 
distribution  of  the  advantages  of  society,  and  injury  to 
the  individual  which  results  therefrom  is  an  injury  to 
society  itself. 

It  is  therefore  the  practical  interest  in  the  continuance 
and  success  of  society  which  dictates  the  principle  of 
equality  in  this  sense,  and  not  the  a  priori  categorical 
imperative  of  an  equality  to  be  realized  in  all  human 
relations.  If  experience  showed  that  society  could  exist 
better  with  inequality,  such  would  deserve  the  prefer- 
ence. The  very  same  thing  is  true  also  of  civil  society, 
no  matter  what  the  species  of  equality  which  the  law  has 
to  maintain  in  order  to  realize  the  practical  interest  of 
that  society.  The  determining  standpoint  in  this  matter 
is  not  that  of  the  individual,  but  of  society.  From  the 
former  we  arrive  at  an  external,  mechanical  equality 
which  measures  all  by  the  same  standard  —  small  and 
great,  rich  and  poor,  children  and  adults,  wise  and 
foolish;  and  which,  by  treating  the  unequal  as  equal, 
in  reality  brings  about  the  greatest  inequality  ("summum 
jus  summa  injuria").  Under  such  conditions  society 
cannot  exist.  It  would  mean  practically  to  deny  the 
differences  which  actually  are  and  must  be  within  it. 


fill      SOCIAL  MECHANICS  — COERCION        279 

A  demand  for  equality  of  this  sort  is  no  better  than  were 
the  demand  that  the  various  members  of  the  human  body 
should  be  formed  exactly  alike.  They  must  be  different 
in  order  that  we  may  speak  of  a  body.  The  same  is 
true  in  the  social  body.  The  equality  which  is  to  be  real- 
ized within  it  can  only  be  relative,  viz.,  commensurate- 
ness  between  capacity  to  perform  and  the  act  imposed; 
between  the  problem  and  the  means  for  its  solution; 
between  merit  and  reward;  between  guilt  and  punish- 
ment. Its  motto  reads,  "suum  cuique"  —  the  "suum" 
is  measured  according  to  the  peculiarity  of  the  condi- 
tions. This  is  the  basis  of  the  concept  of  true  justice. 
The  equality  which  it  endeavors  to  attain  is  the  equality 
of  the  law  itself;  the  equilibrium  between  the  deter- 
minations of  the  law  and  circumstances.  We  call  that 
law  just  in  which,  according  to  our  judgment,  this  equi- 
librium is  present.  We  call  it  unjust  where  it  is  wanting. 
That  law  is  unjust  which  imposes  the  same  burdens 
upon  the  poor  as  upon  the  rich ;  for  it  then  ignores  the 
difference  in  the  ability  to  perform.  The  law  is  unjust 
which  inflicts  the  same  punishment  for  a  light  offence  as 
for  a  heavy  one;  for  it  then  disregards  the  proportion 
between  crime  and  punishment.  The  law  is  unjust 
which  treats  the  person  of  unsound  mind  like  him  of 
sound  mind;  for  it  pays  no  regard  to  the  nature  of  guilt. 
One  may  admit  this  and  yet  deny  the  practical  signifi- 
cance for  society  of  justice  in  this  sense.  If  ethics  does 
not  do  so  the  reason  is  not  because  it  tacitly  means  to 
admit  this  practical  importance,  but  because  the  idea 
of  it  is  quite  foreign  to  ethics.  The  point  of  view  which 
the  latter  adopts  for  justice  is  the  ethical,  the  same 
apodictic  imperative  of  the  moral  feeling  upon  which  it 
bases  its  entire  system  of  morality.  I  shall  come  to 
terms  with  it  when  I  treat  of  the  theory  of  morality 
(Chapter    IX),    where    I    oppose    to    it    the    practical 


280  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlil 

standpoint  of  the  welfare  of  society.  The  result  of  that 
discussion  will  prove  decisive  for  justice  as  well  as  for  all 
other  questions  of  morality.  But  on  the  present  occasion, 
too,  we  must  not  and  do  not  wish  to  omit  emphasizing 
the  practical  side  of  justice.  Not  in  order  to  treat  it 
in  exhaustive  fashion,  for  that  is  excluded  at  once  by 
the  subordinate  significance  which  the  question  has  for 
our  present  purpose,  but  in  order  to  direct  the  reader's 
own  reflections  to  the  matter. 

The  surest  way  to  get  a  clear  view  of  the  matter  is 
to  put  the  question  negatively;  what  is  the  effect  politi- 
cally, economically  and  morally  of  unjust  laws?  I  be- 
lieve it  would  not  be  difficult  for  the  reader  to  prove 
the  injurious  effects  in  all  three  directions,  and  thus 
arrive  at  a  positive  recognition  of  the  measure  in  which 
the  strength,  the  welfare  and  the  success  of  the  com- 
munity depend  upon  justice. 

I  select  a  particular  case,  not  because  it  is  specially 
important,  but  because  the  recognition  of  the  true 
relation  may  most  easily  escape  notice  in  this  very  case. 
It  belongs  to  the  economic  side  of  criminal  justice.  I 
leave  the  ethical  point  of  view  altogether  out  of  considera- 
tion, and  confine  myself  exclusively  to  the  utilitarian. 

Punishment  in  the  hands  of  the  State  is  a  two-edged 
sword.  If  it  is  improperly  used,  it  turns  its  edge 
against  the  State  itself  and  injures  it  along  with  the 
offender.  With  every  offender  which  it  condemns  it 
deprives  itself  of  one  of  its  members ;  every  time  it  con- 
fines one  in  prison  or  in  a  house  of  correction  it  cripples 
his  energy.  The  recognition  of  the  worth  of  human  life 
and  human  strength  has  an  eminently  practical  signifi- 
cance for  criminal  law.  If  Beccaria  in  his  celebrated 
work  on  crime  and  punishment  (1764)  had  not  raised  his 
voice  against  immoderate  punishment,  Adam  Smith. 
w^ould  have  had  to  do  it  in  his  work  on  the  causes  of  the 


§ji]      SOCIAL  MECHANICS— COERCION        281 

wealth  of  nations  (1776).  If  it  had  fallen  to  his  lot  to 
treat  of  this  matter,  he  would  have  brought  out  the 
truth  that  the  society  which  sacrifices  the  life  or  the  time 
of  its  members  to  the  penal  purpose  without  absolute 
necessity  is  acting  quite  as  much  against  its  interest  as 
the  owner  who  injures  his  animal  by  ill-treatment.  As 
in  the  primitive  times  of  the  human  race  the  recognition 
of  the  value  of  human  life  and  human  strength  was  the 
first  step  to  humanity,  because  such  recognition  deter- 
mined the  victor  to  spare  the  life  of  the  captured  enemy 
instead  of  slaughtering  him  (p.  182),  so  the  same  recogni- 
tion can  and  should  pave  the  way  to  humaneness  in  the 
relation  of  society  to  an  internal  enemy.  Its  own  in- 
terest properly  understood  demands  the  most  careful 
consideration  in  threatening  punishment.  Where  a  fine 
is  sufficient  there  should  be  no  imprisonment ;  and  where 
the  latter  is  sufficient  there  should  be  no  capital  punish- 
ment. In  the  first  penalty,  the  guilty  party  alone  suffers 
loss,  society  does  not.  In  the  last  two,  society  has  to 
purchase  the  evil  which  it  inflicts  upon  him  at  the  ex- 
pense of  its  own  loss;  every  excess  recoils  upon  itself. 

The  purpose  of  the  investigation  so  far  was  to  fix  more 
precisely  the  meaning  of  the  concepts,  arbitrariness, 
equality,  justice,  which  resulted  from  our  analysis  of 
bilateral  norm,  and  to  distinguish  their  use  as  applied 
to  the  legislator  from  that  applied  to  the  judge,  as  the 
sole  difference  with  which  we  are  here  concerned.  We 
shall  now  return  to  the  bilateral  norm. 

We  defined  the  concept  (p.  267)  as  the  subordination 
of  the  State  authorities  to  the  laws  which  they  them- 
selves issue.  What  here  is  the  meaning  of  subordina- 
tion? How  can  the  State  force  5w6ordinate  itself  since, 
from  the  very  meaning  of  the  term,  it  has  no  power 
superior  to  it?  Or  if  the  subordination  consists  merely 
in  self -limitation,   who  will   secure   it?     How  do   they 


282  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlii 

arrive  at  the  idea  of  imposing  a  measure  upon  them- 
selves, a  Hmitation  upon  the  use  of  their  power?  Is 
this  act  of  theirs  beneficial?  Is  it  proper  for  them  to 
apply  it  in  all  directions?  Or  is  there  not  a  sphere  in 
which  the  unilaterally  binding  law,  and  even  the  individ- 
ual imperative,  has  its  complete  justification? 

Such  are  the  questions  concerning  which  we  must 
seek  enlightenment.  I  arrange  their  contents  under 
the  following  three  points  of  view :  — 

1.  Motive. 

2.  Guarantees. 

3.  The  Limits  of  the  subordination  of  the  State 
authorities  to  the  law. 

1.  The  Motive.  What  motive  can  induce  the  author- 
ities to  subordinate  themselves  to  the  law?  The  same 
motive  which  suffices  to  determine  a  person  to  self- 
control,  viz.,  self-interest.  Self-control  pays  itself.  But 
in  order  to  know  this  one  must  have  experience  and 
insight.  Those  who  have  no  insight  learn  nothing  from 
experience;  one  must  have  insight  to  understand  the 
teachings  of  experience,  and  moral  strength  to  practise 
them.  If  we  assume  these  two  conditions  as  given, 
if  we  think  of  authority  as  joined  with  insight  and  moral 
strength,  the  problem  which  we  put  to  the  authorities 
is  solved ;  they  make  use  of  the  law  because  they  are 
convinced  that  their  own  interest  properly  understood 
demands  it.^^  As  the  gardener  cultivates  the  tree  which 
he  has  planted,  so  they  cultivate  the  law,  not  for  the 
sake  of  the  tree,  but  for  their  own  sake.  Both  of  them 
know  that  it  must  be  attended  to  and  cared  for  if  it  is 
to  bear  fruit,  and  that  the  fruit  is  worth  the  trouble. 

"  A  voluntary  confession  of  absolutism  that  is  worthy  of  notice 
is  the  saying  in  Cod.  1.  14.  4  of  Theodos.  II  and  Valentinian  III  (429), 
"Digna  vox  est  majestate  regnantis  legibus  alligatum  se  principem 
profiteri,  adeo  de  auctoritate  juris  nostra  pendet  auctoritas." 


§11]      SOCIAL  MECHANICS— COERCION        283 

Where  the  State  authorities  obey  the  orders  of  their  own 
prescription,  there  alone  are  the  orders  secure  of  their 
proper -effect.  Where  the  law  is  supreme,  there  alone  the 
national  well-being  prospers,  commerce  and  industry 
flourish,  and  the  innate  spiritual  and  moral  force  of 
the  people  unfolds  in  its  full  strength.  Law  is  the  intel- 
ligent policy  of  power;  not  the  short-sighted  policy  of  the 
moment,  and  momentary  interest,  but  that  far-sighted 
policy  which  looks  into  the  future  and  weighs  the  end. 

Such  policy  is  conditional  on  self-control.  But  self- 
control  in  the  State  authorities  just  as  in  the  individual 
is  a  matter  of  practice.  It  requires  many  centuries 
before  the  State  authorities,  starting  from  the  point  of 
unlimited  power,  which  we  assumed,  arrive,  after  long 
vacillation  and  many  relapses  to  the  original  manner, 
at  the  firm  and  inviolable  observance  of  the  law. 

2.  The  Guarantees.  There  are  two,  one  internal,  the 
other  external ;  one  is  the  feeling  of  right,  the  other  the 
administration  of  justice. 

Just  as  the  sense  of  order  cannot  develop  in  the  ser- 
vant if  the  master's  conduct  in  reality  makes  order 
impossible,  so  the  sense  of  right  cannot  develop  in  the 
State's  subjects  if  the  authorities  themselves  tread 
under  foot  the  law  which  they  issue  —  respect  for  law 
cannot  win  its  way  below  where  it  is  wanting  above. 
The  sense  of  right  needs  to  be  realized  in  order  to  grow 
up  strong;  it  cannot  develop  if  the  world  itself  shows  a 
contempt  for  the  demands  which  it  makes.  The  same 
is  true  here  as  in  the  sense  of  beauty,  which  develops 
only  by  the  cultivation  of  beautiful  objects;  by  making 
trial  of  itself  in  the  formation  of  the  beautiful.  Objec- 
tive and  subjective,  internal  and  external,  stand  in 
closest  relation,  mutually  conditioning  and  advancing 
each  other;  the  sense  of  beauty  flourishes  only  in  and 
with  the  beautiful,  the  sense  of  right  or  law  only  in  and 
with  the  law. 


284  THE   CONCEPT  OF   PURPOSE    [Ch.  Vlii 

The  point  where  the  development  of  the  sense  of  right 
first  begins  is  private  law.  The  most  limited  vision  suf- 
fices to  see  the  sphere  of  interest  of  private  law;  the 
simplest  understanding  comprehends  what  it  has  at 
stake  in  private  law.  And  in  confining  itself  purely 
to  the  sphere  of  its  own  ego,  it  arrives  at  the  abstrac- 
tion of  right  in  the  subjective  sense.  This  is  the  point 
of  view  from  which  egoism  is  able  to  comprehend,  and 
did  begin  to  comprehend,  legal  order.  It  is  not  right 
in  the  abstract  that  concerns  it,  but  its  right.  Its  right, 
however,  does  not  extend  beyond  that  which  imme- 
diately affects  it. 

But  egoism  is  an  apt  pupil.  One  of  the  first  experi- 
ences it  has  consists  in  observing  that  when  it  ignores 
the  right  of  another  its  own  right  is  ignored  and  en- 
dangered, and  that  in  defending  another's  right  it  is 
defending  its  own.  Private  law  is  that  part  of  the 
law,  the  practical  significance  of  which  for  the  commu- 
nity is  felt  first  of  all,  and  in  which  the  sense  of  right 
has  actually  come  to  be  first  realized. 

In  the  domain  of  public  law,  and  strangely  enough  also 
in  criminal  law,  the  sense  of  right  does  not  develop  until 
very  much  later.  That  it  should  be  so  in  regard  to 
public  law  is  easily  understood;  but  in  criminal  law 
this  fact  is  surprising.  Of  what  use  is  all  the  security  of 
private  law,  if  the  penal  power  of  the  State  be  not  con- 
fined within  fixed  limits?  By  means  of  an  arbitrary 
exercise  of  the  latter  the  State  authorities  could  put 
to  naught  the  whole  private  law;  they  protect  it  against 
the  private  person  through  the  civil  judge,  but  they 
negate  it  through  the  criminal  judge.  But  even  though, 
owing  to  the  unusually  stubborn  resistance  which  it 
meets  at  the  hands  of  the  State  authorities,  the  sense  of 
right  does  not  realize  its  demand  of  legal  security  in 
these  two  spheres  until  very  late,  once  it  has  arrived 


§11]      SOCIAL  MECHANICS— COERCION        285 

at  power  on  the  floor  of  the  latter,  it  is  driven  irresistibly 
onward  by  its  own  strength,  until  it  finally  realizes  in 
its  full  extent  its  demand  that  right  be  secured. 

This  is  the  final  point  of  the  development.  The  objec- 
tive, actually  realized,  and  the  subjective  sense  of  right 
are  both  on  the  same  height,  and  condition  and  sup- 
port each  other  mutually.  The  security  of  right  depends 
in  the  last  instance  entirely  upon  the  moral  force  of 
the  national  sense  of  right.  Not  upon  the  form  of  gov- 
ernment; you  may  think  it  out  as  skilfully  as  you 
please,  yet  we  can  imagine  no  form  which  would  as  a 
matter  of  fact  take  away  from  the  State  authorities 
the  possibility  of  trampling  the  law  under  foot  (p.  245). 
Not  upon  the  oaths,  by  which  we  think  it  is  secured; 
experience  shows  how  often  these  are  broken.  Not  upon 
the  nimbus  of  holiness  and  inviolability  with  which  theory 
clothes  the  law;  despotism  is  not  overawed  by  it.  The 
only  thing  that  impresses  it  is  the  real  power  which  stands 
behind  the  law  —  the  people,  who  recognize  in  the  law  the 
condition  of  their  existence,  and  feel  an  injury  done  to 
it  as  an  injury  done  to  themselves;  the  people,  from  whom 
it  may  be  expected  that  in  case  of  necessity  they  will 
fight  for  their  rights.  I  do  not  mean  to  say  that  this 
low  motive  of  fear  is  the  only  thing  which  induces  the 
State  authorities  to  observe  the  law.  I  mean  only  that 
it  is  the  last  and  extreme  motive  which  does  not  deny 
its  services  even  when  the  higher  motive  of  respect  for 
the  law  for  its  own  sake  fails.  The  security  of  the  law 
in  the  upward  direction  is  situated  similarly  with  its 
security  in  the  downward  direction.  The  fear  of  the  law 
must  be  replaced  by  respect  for  it.  But  where  this  is 
not  the  case  there  still  remains  fear  as  the  last  resort. 
And  in  this  sense  I  designate  the  fear  which  the  State 
authorities  have  of  the  reaction  of  the  nation's  sense  of 
right  as  the  ultimate  guarantee  of  the  security  of  the 


286  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

law,  and  I  do  not  fail  to  see  either  that  when  once  the 
sense  of  right  has  attained  to  its  full  influence  among 
the  people,  it  will  not  fail  to  exert  its  purely  moral  influ- 
ence upon  the  powers  of  the  State  also. 

Accordingly  the  security  of  the  law  depends  ulti- 
mately on  nothing  else  except  the  energy  of  the  national 
sense  of  right.  The  power  and  prestige  of  the  laws 
stand  ever>n\rhere  on  the  same  level  with  the  moral 
force  of  the  sense  of  right ;  a  lame  sense  of  right  in  the 
nation  means  an  insecure  law;  a  healthy  and  strong 
sense  of  right  means  a  secure  law.  The  security  of  the 
law  is  everywhere  the  work  and  the  merit  of  the  people 
itself.  It  is  a  good  which  history  does  not  give  as  a 
gift  to  any  people.  It  must  be  w^on  by  every  nation 
as  the  reward  of  a  painful  struggle  often  accompanied 
with  bloodshed. 

The  value  of  security  for  the  law  is  so  evident  that  it 
may  seem  superfluous  to  waste  words  concerning  it; 
and  in  reference  to  its  value  for  the  external  order  of 
life,  particularly  for  trade,  commerce,  business,  this  is 
not  really  necessary.  For  no  one  need  be  told  that  the 
value  of  things  does  not  depend  solely  on  their  real 
utility;  that  the  value  of  soil,  for  example,  does  not 
depend  on  its  fertility  alone,  nor  that  of  property,  claims, 
etc.,  on  their  amount,  but  essentially  upon  the  legal  and 
actual  security  of  their  maintenance.  If  it  were  not 
so,  real  estate  in  Turkey  would  have  the  same  value  as 
with  us;  but  the  Turk  knows  very  well  why  it  is  more 
advantageous  for  him  to  transfer  his  estate  to  the  mosque 
and  take  title  ("Vakuf")  from  the  latter  on  payment 
of  protection  money  (an  annual  tax),  than  to  remain 
the  owner  of  it  himself;  the  mosque  alone  enjoys  legal 
security  in  Turkey!  Similar  transfers  often  occurred 
among  us  in  the  middle  ages,  as  is  well  known.  In  the 
time  of  the  later  Roman  Empire,  this  purpose  was  one  of 


§1M      SOCIAL  MECHANICS  — COERCION        287 

the  motives  for  transferring  one's  claims  to  powerful 
persons.^^ 

In  contrast  with  the  economic  value  of  legal  security, 
which  I  shall  not  develop  further  in  this  place,  is  its 
moral  value.  I  find  this  in  the  importance  of  legal 
security  for  the  development  of  character.  Among  the 
characteristic  phenomena  of  communities  under  a  despotic 
government  is  the  striking  absence  of  characters.  All 
the  despotisms  in  the  world  put  together  have  not  pro- 
duced as  many  characters  in  the  course  of  the  ages  as 
the  small  city  of  Rome  in  its  good  days  produced  in  the 
course  of  a  century.  Shall  we  seek  for  the  reason  of  this 
in  the  national  character?  The  national  character  itself 
is  formed  by  the  process  of  time;  why  is  its  develop- 
ment in  Rome  so  completely  different  from  that  in 
Turkey?  There  is  only  one  answer.  Because  the 
Roman  people  understood  early  how  to  gain  possession 
of  legal  security.  It  must  not  be  said  that  this  is  an 
argument  in  a  circle;  that  the  law  is  made  the  condition 
of  the  national  character,  and  this  again  the  condition 
of  the  law ;  for  there  is  the  same  reciprocal  influence  here 
as  in  art  (p.  283).  The  people  make  art,  but  art  in  turn 
makes  the  people;  the  people  make  the  law,  but  the  law 
in  turn  makes  the  people. 

Without  objective  security  of  the  law  there  is  no  sub- 
jective feeling  of  security,  and  without  the  latter  there 
is  no  development  of  character.  Character  is  the  inner 
firmness  and  stability  of  personality;  in  order  that  the 
latter  may  develop,  it  must  find  favorable  conditions 
outside.       Where    the    national    morality    consists    in 

"Cod.  II,  14.  "Ne  liceat  potentioribus  patrocinium  Hgitantibus 
praestare  vel  actiones  in  se  transferre."  In  the  middle  ages  cession 
to  the  clergy  (I,  41,  ch.  2,  X  de  alien.).  In  Turkey  more  than  three 
fourths  of  the  entire  landed  estate  has  come  in  this  way  into  the 
hands  of  the  mosques. 


288  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

accommodating  and  subordinating  oneself  to  others,  in 
a  policy  of  cunning,  craft,  dissimulation  and  dog-like 
submissiveness,  no  characters  can  be  formed.  A  soil 
of  this  kind  produces  only  slaves  and  servants.  Those 
of  them  who  conduct  themselves  as  masters  are  only 
ser\^ants  in  disguise,  domineering  and  brutal  toward  their 
inferiors,  cringing  and  cowardly  toward  their  superiors. 
For  the  development  of  character  man  needs  from  the 
beginning  the  feeling  of  security.  But  this  inner,  sub- 
jective feeling  of  security  presupposes  an  external  objec- 
tive security  in  society ;  and  this  man  possesses  through 
the  law.  Man  on  the  law  is  as  firm  and  unshaken  in 
his  confidence  in  it  as  the  believer  in  his  confidence  in 
God.  Or,  more  precisely,  both  of  them  put  their  trust 
not  merely  in  something  outside  of  them,  but  rather 
they  feel  God  and  the  law  within  them  as  the  firm  ground 
of  their  existence,  and  as  a  living  part  of  themselves; 
which  therefore  no  power  on  earth  can  deprive  them  of, 
but  can  only  destroy  in  and  with  them.  This  is  in  both 
of  them  the  source  of  their  power.  The  anxiety  of  the 
ego  in  the  wor-ld,  which  is  the  natural  feeling  of  the 
animated  atom  thrown  entirely  upon  itself,  is  removed 
with  trust  in  the  higher  power  which  supports  it.  It 
feels  the  power  within  itself  and  itself  in  the  power.  In 
place  of  anxiety  and  fear  develops  a  firm,  immovable 
sense  of  security.  An  immovable  sense  of  security; 
this  is,  in  my  opinion,  the  correct  expression  for  the  state 
of  mind  which  law  and  religion  produce  in  man  when  they 
correspond  to  the  ideas  we  form  of  them.  The  law  gives 
him  the  feeling  of  security  in  his  relation  to  man,  religion 
in  his  relation  to  God. 

The  security  which  these  two  grant  is  at  the  same  time 
dependence.  There  is  no  contradiction  in  this,  for 
security  is  not  independence  —  there  is  no  such  for  man 
—  but  legal  dependence.     But  dependence  is  the  reverse 


§11.]      SOCIAL  MECHANICS— COERCION        289 

side,  security  the  obverse.  Therefore  I  cannot  accept 
the  well-known  definition  of  Schleiermacher,  who  defines 
religion  as  the  feeling  of  dependence  upon  God,  for  it 
makes  the  reverse  side  the  face.  It  may  be  suitable  for 
that  stage  in  the  development  of  the  religious  sense 
which  corresponds  to  the  stage  of  despotism  in  the  his- 
tory of  law  —  here  the  feeling  of  dependence  in  reality 
correctly  designates  the  relation  —  but  it  does  not  hold 
for  the  final  conclusion  of  the  development.  This  final 
conclusion  consists,  in  religion  as  well  as  in  law,  in  the 
fact  that  the  feeling  of  security  overcomes  the  feeling 
of  dependence.  In  this  sense,  therefore,  i.  e.,  from  the 
psychological  standpoint,  law  may  be  defined  as  the 
feeling  of  security  in  the  State;  and  religion,  as  the  feeling 
of  security  in  God. 

To  the  sense  of  right  as  the  inner  guarantee  of  the 
secured  existence  of  the  law  I  opposed  above  the  adminis- 
tration of  justice  as  the  outer  guarantee.  The  peculiar 
character  of  the  administration  of  justice  in  contradis- 
tinction to  the  other  tasks  and  branches  of  the  State's 
activities,  is  based  upon  two  factors;  the  inner  pecu- 
liarity of  the  purpose,  and  the  outer  peculiarity  of  the 
means  and  forms  by  which  it  is  carried  out.  In  respect 
to  the  former,  the  distinction  of  the  administration  of 
justice  from  the  other  branches  of  the  State's  activities 
consists  in  the  fact  that  its  intention  is  exclusively  to 
realize  the  law,  —  its  motto  is  the  law  and  nothing  but  the 
law.  The  administrative  authorities  of  the  State,  too, 
to  be  sure,  are  in  duty  bound  to  apply  the  law  as  far  as  it 
extends,  but  with  them  there  is  a  second  factor  associated 
with  the  law,  viz.,  its  adaptability  to  the  end.  In  contra- 
distinction to  these,  the  authorities  who  are  entrusted 
with  the  administration  of  the  law  in  the  narrow  sense, 
i.  e.,  the  judicial  authorities,  have  their  eye  exclusively 
upon  the  law.     The  judge  must  in  a  certain  sense  be 


290  THE   COxXCEPT   OF   PURPOSE    [Ch.  VIII 

nothing  else  than  the  law  become  alive  in  his  person  and 
endowed  with  speech.  If  justice  could  descend  from 
heaven  and  take  a  pencil  in  its  hand  to  write  down  the 
law  with  such  definiteness,  precision  and  detail  that  its 
application  should  become  a  work  of  mechanical  routine, 
nothing  more  perfect  could  be  conceived  for  the  adminis- 
tration of  justice;  and  the  kingdom  of  justice  would  be 
complete  upon  earth.  For  absolute  equality  and  the 
strict  dependence  of  the  judicial  sentence  upon  it  are 
so  far  from  being  incompatible  with  the  idea  of  justice 
that  on  the  contrary  they  form  its  highest  aim.  The 
idea  of  adaptability  to  an  end,  on  the  other  hand,  is  so 
opposed  to  this  constraint  by  a  norm  determined  in  detail 
in  advance,  that  complete  freedom  from  constraint  of 
any  norm  would  be  more  advantageous  than  absolute 
constraint.  To  transfer  the  idea  of  constraint  in  the 
administration  of  justice  to  the  other  branches  of  the 
activity  of  the  State  would  bring  the  whole  State  into 
a  condition  of  torpor  and  rigidity. 

Upon  this  contrast  of  the  two  ideas,  of  the  constrained 
character  of  justice  and  the  freedom  of  adaptability  to  an 
end,  is  based  the  inner  distinction  between  the  adminis- 
tration of  justice,  and  the  executive  function  of  the  gov- 
ernment; and  language  expresses  this  properly.*^ 

^  In  the  expression  " Rechtspflege"  (administration  of  justice), 
"Recht"  (justice)  is  emphasized  as  its  subject,  and  "Pflege"  (admin- 
istration), i.  e.,  the  zealous  care  and  effort  applied  to  the  law,  as  its 
task.  In  "Justiz"  (administration  of  the  law)  is  emphasized  "jus- 
titia,"  justice,  i.  e.,  what  is  in  accordance  with  law,  as  its  highest  aim. 
In  "judex"  is  emphasized  "jus  dicere,"  and  in  "Richter"  (judge), 
direction  in  a  straight  line  in  accordance  with  the  prescribed  rule  of 
conduct.  On  the  other  hand,  "Regienmg"  (government)  contains 
the  idea  of  mastery  ("regere,"  "rex"),  and  " Verwaltung"  (adminis- 
tration) that  of  force  which  rules  ("waltet")  freely  (from  "valdan," 
"waltan,"  to  be  strong,  to  compel,  related  to  "valere").  An  admin- 
istrator ("Verwalter")  is  he  who  has  to  observe  the  interest  of  his 
principal.     The  methods  he  is  to  follow  are  not  prescribed  for  him, 


§11.]      SOCIAL  MECHANICS— COERCION        291 

To  the  internal  difference,  or  difference  in  purpose, 
between  the  administration  of  justice  and  the  executive 
function  of  government  corresponds  the  difference  in 
external  organization. 

Among  all  civilized  peoples  there  appears  at  a  certain 
stage  in  the  development  of  the  law  the  separation  of  the 
administration  of  justice  from  the  other  branches  of 
political  activity ;  the  judge  is  a  figure  which  meets  us 
everywhere.  This  does  not  exclude  the  external  com- 
bination of  the  judicial  and  administrative  functions 
in  one  and  the  same  person.  The  important  thing  is 
only  that  the  two  spheres  should  be  internally  distinct, 
i.e.,  that  the  principles  indicated  for  the  one  are  different 
from  those  indicated  for  the  other.  But  experience 
teaches  that  the  internal  distinctness  of  the  two  spheres 
is  essentially  furthered  and  secured  if  external  separation 
according  to  persons,  separation  of  the  judicial  from  the 
executive,  is  added  to  internal.  This  is  so  because  it 
exceeds  the  power  of  man  so  to  develop  in  his  mind  and 
to  jnaster  two  entirely  different  modes  of  conceiving 
and  of  acting  as  to  be  able,  according  to  the  difference 
of  the  subject,  to  apply  now  the  one,  now  the  other, 
without  the  one  influencing  the  other.  The  separation 
of  the  administration  of  justice  from  the  executive  func- 
tion must  be  an  external  one  according  to  persons  and 
offices  if  it  is  to  be  quite  sure  of  its  purpose. 

The  reason  for  this  requirement  is  not  merely  the  prin- 
ciple of  division  of  labor,  i.  e.,  the  consideration  that  the 
law,  on  account  of  its  extent  and  difficulty,  requires  a 
special  person.  The  principle  of  the  division  of  labor 
holds  also  of  the  executive  function.     The  public  works 

but  they  consist  in  the  interest,  utility  and  welfare  of  his  superior- 
It  is  left  to  his  own  intelligence  to  do  the  right  thing  in  a  given  case. 
The  Roman  antithesis  is  expressed  in  the  terms  "jus"  ("jurisdictio") 
and  "imperium." 


292  THE  CONCEPT  OF   PURPOSE    [Ch.  Vlli 

require  a  different  person  from  the  mint;  forestry  re- 
quires a  different  person  from  mining;  and  the  State 
appoints  different  officials  for  all  these  different  pur- 
poses. The  separation  of  the  judicial  from  the  executive 
function  was  already  carried  out  historically  at  a  time 
wlien  the  law  had  not  yet  by  any  means  attained  so 
rich  and  fine  a  development  as  is  supposed  in  the  assump- 
tion. Compare,  for  example,  Rome  and  Germany,  where 
the  "judex"  and  the  "Schoffe"  (lay  judge)  long  preceded 
the  higher  stage  of  the  development  of  the  law ;  and  in  our 
institution  of  the  jury  at  the  present  day,  the  requirement 
of  a  special  knowledge  of  the  law  is  entirely  ignored. 

The  separation  of  the  judicial  from  the  executive 
function  cannot  therefore  be  referred  to  the  principle  of 
the  division  of  labor ;  and  there  must  be  another  reason. 
It  lies  in  the  peculiarity  above  mentioned  of  the  problem 
of  the  law  in  contradistinction  to  all  the  other  problems 
of  the  activity  of  the  State.  The  separation  of  the  judi- 
cial as  a  separate  branch  of  State  activity  means  the 
retirement  of  the  law  into  itself  for  the  purpose  of  solv- 
ing its  problems  with  security  and  completeness. 

The  mere  fact  of  the  external  separation  of  the  judi- 
cial function  from  the  executive,  quite  apart  from  the 
institutions  and  guarantees  to  be  named  forthwith  which 
accompany  the  same,  is  of  great  value  for  that  purpose. 
By  separating  the  judicial  function,  the  State  authority 
recognizes  in  principle  that  the  law  is  a  distinct  problem, 
and  that  the  considerations  determining  its  solution  are 
different  from  all  those  other  problems  which  the  State 
reserves  for  itself.  In  handing  over  the  administration 
of  justice  to  the  judge  they  actually  declare  before  all  the 
people  that  they  wish  to  renounce  that  privilege.  The 
establishment  of  the  judicial  office  signifies  self-limitation 
in  principle  on  the  part  of  the  State  authorities  in  refer- 
ence to  that  portion  of  the  law  which  is  handed  over  to 


§11]       SOCIAL  MECHANICS— COERCION        293 

the  p.dministration  of  the  judge.  It  means  empowering 
the  judge  to  find  the  law  independently  of  them  and  in 
accordance  altogether  with  his  own  convictions,  and  the 
assurance  of  the  binding  force  of  the  sentence  handed 
down  by  him .  They  may  lay  the  boundaries  as  narrow  or 
as  wide  as  they  please ;  within  these  boundaries  they  have 
given  the  judge  independence.  Disregard  of  this  fact  will 
bring  them  in  open  contradiction  with  themselves,  and 
will  stamp  their  proceeding  as  a  breach  of  the  law,  as 
a  murder  of  justice.  The  State  authorities  who  lay  a 
hand  upon  that  order  of  justice  which  they  themselves 
have  created  pronounce  their  own  condemnation. 

According  to  what  has  just  been  said,  therefore,  the 
purely  external  separation  of  the  judicial  from  the 
executive  function  denotes  a  highly  important  develop- 
ment along  the  path  of  the  law.  It  represents,  if  I  may 
be  allowed  a  juristic  comparison,  the  emancipation  of 
the  administration  of  justice  from  the  State  authorities 
by  means  of  division  of  labor.  Justice  changes  its  abode, 
and  the  mere  removal  has  the  consequence  that  if  the 
State  authorities  desire  to  lay  violent  hands  on  it,  they 
must  first  cross  the  street;  whereas,  as  long  as  it  lived 
under  the  same  roof  with  them,  they  could  have  done  the 
thing  within  the  four  walls  without  being  noticed. 

Now  let  us  examine  more  closely  justice's  household, 
and  the  arrangements  which  it  contains.  It  is  composed 
of  four  constituent  parts: 

1 .  Material  law,  which  is  handed  over  to  the 

2.  Judge  for  his  exclusive  application.    It  is  applied  to 
,  3.   Two  disputing  parties,  and 

4.  In  the  form  of  a  fixed  and  prescribed  mode  of  pro- 
cedure (law-suit.) 

Of  these  four  elements  the  first  contains  nothing  which 
is  peculiar  to  the  administration  of  justice;  it  is  common 
to  it  and  the  executive  power.     The  difference  consists 


294  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

only  in  this,  that  the  judge  is  expected  to  be  guided 
exclusively  by  the  law  {p.  289),  and  this  requirement  makes 
it  necessary  that  the  law  should  be  fixed  with  the  great- 
est possible  completeness  and  precision.  The  effort  to 
bind  the  judge  to  the  law  as  much  as  possible  is  respon- 
sible for  an  arrangement  which  is  repeatedly  met  with 
in  the  history  of  law  in  very  different  stages  of  its  develop- 
ment. It  consists  in  the  requirement  of  express  refer- 
ence to  the  law,  whether  on  the  part  of  the  party  who 
desires  to  set  the  activity  of  the  judge  in  motion  (Roman 
procedure  of  "legis  actio," "bill  of  indictment  of  modem 
criminal  procedure),  or  on  the  part  of  the  judge  in 
handing  down  the  sentence  (modern  criminal  procedure) . 
We  might  designate  it  as  the  system  of  procedural  legal- 
ism. This  prescription  raises  the  conformity  to  material 
law  of  judicial  procedure  to  a  procedural  requirement  of 
the  act  in  question;  the  procedural  act  is  not  possible 
unless  it  can  show  its  legitimacy  in  material  law.  Being 
calculated  to  exclude  judicial  arbitrariness  and  to  keep 
constantly  before  the  judge's  mind  the  fact  that  his 
power  extends  only  as  far  as  the  law  permits,  this  ar- 
rangement purchases  this  advantage  at  the  cost  of  mak- 
ing the  development  of  the  law  beyond  the  prescribed 
frame  in  practice  difficult  in  a  high  decree,  and  handing 
it  over  exclusively  to  the  legislature  —  a  consequence 
which  may  seem  desirable  for  criminal  law  as  a  guarantee 
of  legal  security,  but  which  contains  a  decided  evil  for 
civil  law.  For  the  latter,  the  obligation  of  the  judge  to 
assign  reasons  for  his  decision  contains  a  much  more 
useful  form  of  the  same  idea.  It  forces  him  to  justify 
his  judgment  objectively  without  restricting  him  to  the 
immediate  content  of  the  law. 


^  [The  procedure  by  which,  by  the  solemn  act  of  the  parties  them- 
selves, a  legal  issue  was  made  in  a  legal  controversy  at  Roman  law.] 


§in      SOCIAL  MECHANICS— COERCION        295 

Another  form  of  the  law,  which  follows  the  same  pur- 
pose as  the  above,  except  that  it  does  it  in  a  still  less 
appropriate  way,  is  the  casuistical.  This,  instead  of 
giving  the  judge  general  principles  and  leaving  their 
correct  application  in  a  particular  case  to  his  own  insight, 
gives  him  detailed  regulations  for  every  case,  juristic 
recipes  for  the  decision  of  all  possible  law-suits,  which 
are  intended  to  free  him  from  all  further  searching.  The 
impossibility  of  seeing  beforehand  the  infinite  variety 
and  manifold  formation  of  cases,  stamps  this  attempt 
of  absolutely  fixing  the  judicial  decision  as  a  wrong  one 
from  the  start.  The  idea  in  the  mind  of  the  author  is 
to  make  the  application  of  the  law  a  purely  mechanical 
thing,  in  which  judicial  thinking  should  be  made  super- 
flous  by  the  law.  We  are  reminded  of  the  duck  con- 
structed by  Vaucanson,  which  carried  out  the  process 
of  digestion  mechanically;  the  case  is  thrown  into  the 
judging  machine  in  front,  and  it  comes  out  again  as  a 
judgment  behind.  Experience  has  judged  here  also  — 
the  brain  of  the  judge  cannot  be  replaced  by  the  legisla- 
tor. The  result  which  he  obtains  through  attempts  of 
this  kind  consists  in  reality  only  in  stupefying  the  judge. 

I  now  turn  to  the  three  other  requirements  of  the  ad- 
ministration of  justice.  These  are  peculiar  to  it.  The 
form  in  which  the  law  is  applied  in  the  administration 
of  justice  is  based  upon  the  fact  that  it  takes  place 
between  two  conflicting  parties,  by  following  a  prescribed 
procedure  (law-suit),  through  the  judge.  The  point 
about  which  the  whole  administration  of  justice  turns 
is  the  law-suit. 

A  dispute  presupposes  two  disputing  members,  the 
parties.  In  a  civil  action,  they  are  the  plaintiff  and  the 
defendant,  in  a  criminal  action,  the  State  authorities  and 
the  defendant  The  conflict  must  be  settled  by  a  third 
party,   who  has  no  personal   interest  in   the  decision. 


296  THE   CONCEPT  OF   PURPOSE    [Ch.  Vlll 

This  is  the  task  of  the  judge;  and  the  position  which 
the  State  assigns  to  him  must  be  such  as  to  enable  him 
to  fulfil  this  task.  To  assign  the  judge  the  role  of  one 
of  the  parties  (of  the  State  which  prosecutes  the  criminal) 
in  addition  to  his  role  as  judge,  as  was  the  case  in  early 
criminal  procedure,  was  a  form  of  the  relation  which 
hindered  in  the  highest  degree  the  requirement  of  im- 
partiality in  the  judge ;  to  be  a  party  and  to  be  impartial 
is  an  impossible  combination. 

The  relation  of  the  parties  to  the  judge  is  that  of  legal 
subordination;  their  relation  to  each  other  is  one  of 
legal  equality.  The  State,  too,  when  it  appears  as  a 
party  in  a  civil  or  criminal  case,  subordinates  itself 
legally  to  the  judge;  it  stands  on  the  same  line  with 
a  private  person,  and  becomes  a  party  like  any  other. 
In  those  relations  where  this  seems  to  it  inappropriate, 
it  must  by  law  not  assign  the  decision  to  the  judge,  but 
reserve  it  to  itself.  If  it  has  once  done  the  former,  it 
must  take  the  consequences  also,  and  go  to  law  like  every 
other  party,  i.  e.,  it  must  subordinate  itself  entirely  to 
the  judge  and  the  rules  of  the  case. 

The  relation  of  the  parties  in  the  case  to  each  other 
is  that  of  legal  equality.  The  weapons  with  which  they 
fight  each  other  must  be  apportioned  equally,  light  and 
shade  must  be  equally  distributed.  It  is  the  first  of 
all  requirements  which  the  organization  of  procedural 
law  must  realize,  that  of  procedural  justice,  which  here 
again  coincides  with  equality  (p.  275).  All  the  other 
requirements  are  secondary  in  comparison  with  this, 
and  have  adaptability  to  an  end  as  their  object. 

Parties,  judges,  law-suits,  form  accordingly  the  three 
peculiar  criteria  of  the  administration  of  justice.  It 
follows  from  this  that  martial  law  or  lynch  law  does 
not  belong  to  the  administration  of  justice.  The  State 
authorities  are  not  in  this  case  seeking  justice  from  a 


§11]      SOCIAL  MECHANICS  — COERCION        297 

judge  who  is  placed  above  them;  they  declare  it  them- 
selves. The  court-martial  which  they  order  represents 
themselves;  it  has  only  the  name  of  court,  in  reality 
it  functions  like  an  administrative  authority.  How  far 
the  State  must  extend  the  scope  of  the  administration 
of  justice  in  the  true  sense  of  the  word  is  a  question  of 
policy.  Up  to  recently  the  latter  was  confined  to  the 
administration  of  civil  and  criminal  law.  We  knew 
only  the  civil  and  criminal  judge,  the  civil  and  criminal 
process.  But  the  progress  in  public  law  which  our 
modern  period  has  made,  gave  a  wider  extension  also 
to  the  administration  of  justice  (court  for  State  contro- 
versies, administrative  justice),  and  will  do  so  in  all 
probability  more  and  more  in  the  course  of  time. 

Now,  no  matter  how  precisely  the  law  may  be  laid 
down  which  is  to  be  applied  materially  and  procedurally, 
the  entire  success  of  the  administration  of  justice  depends 
ultimately  upon  two  requisite  conditions  in  the  person 
of  the  judge ;  the  securing  of  which  must  therefore  form 
the  chief  aim  of  legislation.  One  is  intellectual  in 
its  nature;  the  necessary  knowledge  must  be  his  and 
the  requisite  readiness  in  its  application ;  in  short  theo- 
retical and  practical  mastery  of  the  law.  The  arrange- 
ments of  the  present  day  which  are  intended  to  secure 
this  are  well  known;  the  study  of  the  law,  the  State 
examinations  and  probational  service.  The  second  is 
moral  in  its  nature,  and  a  matter  of  character;  he  must 
have  the  necessary  firmness  of  will  and  moral  courage 
to  maintain  the  law  without  being  led  astray  by  con- 
siderations of  any  kind,  by  hate  or  friendship,  sympathy 
or  fear.  It  is  the  quality  of  justice  in  the  subjective 
sense,  "constans  ac  perpetua  voluntas  suum  cuique 
tribuendi"  (1.  1.  10.  pr.).  The  true  judge  knows  no 
respect  of  person;  the  parties  who  appear  before  him 
are  for  him  not  these  definite  individuals,  but  abstract 


298  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

persons  in  the  mask  of  plaintiff  and  defendant;  he  only 
sees  the  mask,  not  the  individual  behind  it.  Abstraction 
from  all  concrete  accessories,  elevation  of  the  concrete 
case  to  the  height  of  the  abstract  situation  as  decided 
in  the  law,  treatment  of  the  case  in  the  manner  of  an 
example  in  arithmetic  where  it  is  immaterial  what  it 
is  that  is  numbered,  whether  it  be  ounces  or  pounds, 
dollars  or  cents,  —  this  is  what  characterizes  the  true 
judge. 

Knowledge  may  be  bought,  character  cannot.  There 
is  no  arrangement  which  can  secure  against  partiality 
in  a  judge. 

But  in  this  direction  also  a  great  deal  can  be  done. 
Legislation  may  follow  one  of  two  ways  in  this  matter. 
It  can  either  try  to  prevent  partiality  in  the  germ 
by  removing  as  far  as  possible  the  occasions  which 
might  induce  it  {prophylactic  method),  or  it  can  com- 
bat it  directly,  either  by  counteracting  it  psychologi- 
cally or  by  trying  at  least  to  make  it  as  harmless  as 
possible  in  its  consequences  {repressive  method). 

The  psychological  counterpoise  which  presents  itself 
first  to  the  law,  for  counteracting  the  temptation  of 
the  judge  to  partiality,  is  the  moral  one  of  the  oath,  the 
well-known  judge's  oath  which  we  meet  among  all  civi- 
lized peoples,  and  from  which  our  present  "Gesch- 
worene"  and  "jury"  has  its  name.  But  the  effectiveness 
of  this  means  depends  upon  the  conscientiousness  of 
the  individual ;  if  he  has  no  conscience  it  fails  of  its  pur- 
pose. For  such  there  is  the  fear  of  the  disadvantageous 
consequences  of  violation  of  duty  which  the  law  threatens 
(disciplinary  investigation,  civil  liability,  criminal  pun- 
ishment). But  this  means  too  has  only  a  limited  effec- 
tiveness, it  strikes  only  the  gross  violations  of  duty,  which 
are  plainly  seen  to  be  such  on  the  surface;  partiality 
escapes  it  under  the  guise  of  free  subjective  conviction. 


§11]      SOCIAL  MECHANICS— COERCION        299 

On  the  other  hand,  legislation  has  no  dearth  of  means 
for  making  the  consequences  of  partiality  harmless  up 
to  a  certain  degree,  partly  by  the  constitution  of  the 
court,  partly  by  the  procedure.  The  evil  consequences 
of  partiality  may  be  avoided  by  the  former  method 
through  the  appointment  of  a  bench-court.  Where 
the  majority  of  the  judges  of  a  country  are  animated 
by  the  spirit  of  loyalty  and  conscientiousness,  the  method 
of  appointing  a  bench-court  gives  a  guarantee,  accord- 
ing to  the  law  of  large  numbers,  that  the  conscientious 
judge  will  dominate  in  them,  and  co-operation  with 
him  will  put  a  certain  limitation  upon  the  less  conscien- 
tious also.  With  a  single  judge,  on  the  contrary,  there 
is  room  for  chance;  here  the  judge  of  no  conscience 
stands  by  himself;  the  equalizing  and  restraining  influ- 
ence of  his  colleague  is  absent,  and  at  most  there  still 
remains  his  regard  for  the  higher  court.  But  for  this 
very  reason  the  latter  is  of  two-fold  value  as  against 
the  single  judge.  With  adequately  filled  bench-courts 
appellate  courts  are  scarcely  necessary,  but  in  the  case 
of  a  single  judge  an  appeal  should  never  be  denied.  The 
standard  of  the  amount  of  the  object  in  dispute,  accord- 
ing to  which  the  permission  of  appeal  to  a  higher  court 
is  regularly  measured,  is  scarcely  to  be  justified.  The 
interest  of  justice  is  measured  not  merely  according  to 
the  value  of  the  object,  but  also  according  to  the  ideal 
value  of  the  law,  and  as  I  feel  I  would  rather  submit  the 
most  important  matter  to  the  single  decision  of  a  bench- 
court  than  the  most  insignificant  to  the  decision  of  a 
single  judge. 

In  addition  to  the  repressive  method  just  discussed, 
there  is  open  to  legislation  the  above-mentioned  pro- 
phylactic, which  is  calculated  to  remove  as  far  as  pos- 
sible the  occasions  and  inducements  to  partiality  on 
the  part  of  the  judge.     It  is  clear  that  this  is  possible 


300  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

in  a  limited  measure  only.  The  sword  of  justice  presup- 
poses in  the  person  who  is  called  upon  to  wield  it  the 
moral  courage  to  strike  the  guilty  one  with  it  and  take 
upon  himself  his  ill-will,  hatred  and  enmity.  Say  what 
you  will,  these  possible  injurious  consequences  cannot 
be  taken  away  from  the  judge ;  and  in  this  sense  we  can 
say  that  the  just  judge  must  "carry  his  own  skin  to 
market." 

But  legislation  can  and  must  see  to  it  that  the  risk 
which  the  judge  has  to  stake  for  justice  shall  not  be 
higher  than  is  absolutely  necessary;  and  that  he  should 
not  be  required  to  jeopardize  his  existence.  The  annals 
of  the  administration  of  justice  exhibit  splendid  and 
elevating  examples  of  the  fearlessness,  steadfastness  and 
moral  heroism  of  judges,  but  society  has  the  most  vital 
interest  in  not  straining  its  demands  on  the  moral  strength 
of  the  judge  too  far.  The  judicial  office  must  not  be 
founded  on  the  presupposition  of  heroism  and  martyr- 
dom, but  on  a  moderate  proportion  of  human  strength. 
The  father  must  be  spared  the  torture  of  condemning 
his  own  children  to  death  as  did  Brutus  of  old.  The  judge 
should  not  be  expected  to  sit  in  judgment  over  his  wife 
and  child,  and  if  he  desires  it,  the  law,  as  is  actually  the 
case,  should  forbid  it.  No  one  should  judge  in  a  matter 
afTecting  himself ;  and  even  when  an  enemy  or  a  friend 
or  a  near  relative  stands  as  a  party  before  him,  the 
judge  himself  as  well  as  the  party  should  be  given  the 
privilege  of  proposing  the  withdrawal  of  the  judge  from 
the  case.  The  law  must  not  cease  for  a  moment  its  en- 
deavors to  keep  away  from  the  judge  all  palpable  temp- 
tations and  allurements;  not  only  for  his  own  sake,  but 
also  in  the  interest  of  society. 

In  this  direction  the  establishment  of  bench-courts,  — 
and  we  come  to  the  second  invaluable  point  of  superi- 
ority of  these  over  the  single  judge,  —  is  of  quite  extraor- 
dinarv  value. 


§11]      SOCIAL  MECHANICS— COERCION        301 

The  sentence  of  the  single  judge  is  his  own.  He  must 
answer  for  it,  and  take  upon  himself  the  hatred,  ill-will 
and  persecution  of  the  person  injured  by  it.  In  a  bench - 
court  of  justice  the  part  of  the  particular  judge  in  the 
verdict  cannot  be  known ;  and  if  the  legal  obligation  of 
official  secrecy  in  reference  to  the  vote  is  observed,  the 
public  knows  nothing  about  it.  No  one  can  hold  a 
particular  member  responsible  for  the  verdict  with  cer- 
tainty. And  this  uncertainty,  this  veil  which  the  "court 
of  justice"  throws  over  the  part  of  the  individual,  does 
the  same  service  for  weakness  as  the  secret  ballot  in 
elections.^*  For  this  very  reason  legislation  should  make 
it  a  most  stringent  obligation  to  preserve  official  secrecy 
in  the  internal  proceedings  of  a  judicial  college,  and 
visit  every  breach  of  this  secrecy  with  a  heavy  penalty. 
Official  secrecy  is  one  of  the  most  effective  guarantees 
of  judicial  independence. 

Among  all  the  powers  and  influences  which  may 
become  dangerous  to  the  impartiality  of  the  judge,  the 
influence  of  the  State  authorities  which  gave  him  his 
office  takes  by  far  the  first  place  in  the  case  of  the  pro- 
fessional judge,  with  whom  I  am  primarily  concerned. 
The  office  to  which  he  is  called  constitutes  as  a  rule  the 
economic  basis  of  his  whole  existence.  If  they  can  take 
it  away  from  him  at  will,  they  are  in  a  position,  when 
they  desire  a  definite  judicial  decision  in  their  interest, 
to  put  before  him  the  alternative  of  submitting  to  their 
wish  or  losing  his  position  and  his  income. 

'*  In  Rome  they  adopted  in  later  times  this  form  of  voting  ("per 
tabellas")  not  only  in  elections  but  also  in  popular  courts  and  jury 
courts  ("quaestiones  perpetuae").  Where  the  strength  is  wanting 
not  to  allow  oneself  to  be  influenced,  it  is  already  a  gain  when  weak- 
ness is  given  the  possibility,  by  means  of  secrecy,  of  free  self-deter- 
mination. It  is  deplorable  that  we  should  have  to  count  with 
weakness,  but  it  is  after  all  better  to  obtain  a  tolerable  result  by 
doing  this,  than  a  bad  one  by  counting  on  a  power  that  does  not  exist . 


302  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

The  judge's  independence  of  the  mere  pleasure  of  the 
State  authorities,  the  security  of  his  position  by  law, 
and  the  use  of  the  same  strictly  in  accordance  with  the 
directions  laid  down  in  the  law,  are  therefore  the  indis- 
pensable guarantee  of  legal  security,  and  constitute  an 
infallible  sign  whether  the  State  authorities  take  the 
recognized  principle  of  the  independence  of  justice  seri- 
ously or  not.  To  the  impossibility  of  removing  a  judge 
our  time  has  frequently  added  the  impossibility  of 
transferring  the  judge  against  his  will;  and  it  cannot 
be  denied  that  the  latter  forms  a  valuable  complement 
to  the  former. 

But  the  protection  against  the  loss  of  his  position  alone 
is  not  sufficient  to  give  the  judge  independence  unless 
the  ofifice  itself  makes  him  economically  independent. 
Adequate  pay  of  the  judicial  office  according  to  the  point 
of  view  which  we  established  above  (p.  152)  for  salary, 
is  a  requirement  of  the  first  rank  for  a  healthy  formation 
of  the  administration  of  justice.  Economy  in  the 
management  of  the  State  is  nowhere  applied  with  greater 
injury  than  here.  And  it  is  a  shameful  proof  of  the 
imperfect  political  insight  of  many  popular  representa- 
tives in  Germany  that  instead  of  taking  the  initiative, 
in  the  interest  of  society,  to  raise  the  salaries  —  most 
glaringly  incommensurate  with  the  higher  cost  of  liv- 
ing—of judicial  officers  to  the  proper  measure,  they 
have  even  in  a  number  of  instances  opposed  in  an  irre- 
sponsible manner  the  proposals  of  the  governments  for 
this  purpose.  The  experience  of  other  countries  could 
have  taught  them  that  the  people  must  pay  two-fold 
and  three-fold,  in  the  form  of  bribe,  what  the  State  econo- 
mizes in  the  salaries  of  its  officials. 

The  three  means  just  mentioned,  namely,  security  of 
position,  secrecy  in  voting,  and  adequate  salary,  are 
sufficient  to  enable  the  judge  to  state  his  convictions 


§11.]       SOCIAL  MECHANICS  — COERCION        303 

freely  in  regard  to  a  private  person  as  well  as  the  authori- 
ties of  the  State.  A  judge  so  placed  is  inviolable.  But 
he  is  not  yet  for  this  reason  inaccessible.  The  way  of 
intimidation  alone  is  closed  to  the  tempter,  but  he  can 
steal  upon  him  by  another  way  also;  and  this  secret 
path  can  be  used  by  the  State  as  well  as  the  private  per- 
son. And  in  the  case  of  the  former  it  is  particularly 
dangerous.  Not  merely  because  the  means  which  the 
State  commands  (preferment,  honors)  are  far  superior 
to  those  of  the  private  person,  but  for  another  reason 
also.  The  mere  attempt  to  bribe  the  judge  on  the  part 
of  a  private  person  carries  the  stamp  of  illegality  on  its 
face.  The  mere  offer  denotes  the  tempter,  and  reveals 
him  in  his  true  colors.  The  State,  on  the  other  hand, 
does  not  need  to  make  an  offer.  It  does  not  have  to 
name  the  venal  judge  a  price  for  his  compliance.  The 
possession  of  the  price  in  its  hands  performs  the  same 
service- — servility  and  ambition  divine  its  thoughts 
from  a  distance  and  meet  it  half  way. 

There  is  no  means  of  protection  against  this  danger. 
You  cannot  take  away  from  the  State  by  law  the  power 
freely  to  dispose  of  those  means.  This  could  be  done 
only  by  applying  the  principle  of  length  of  service  to 
preferment,  bestowal  of  rank  and  decorations.  Nor 
can  you  blindfold  justice  so  tight  as  to  prevent  it  from 
casting  ogling  glances  at  the  external  reward  beyond. 
But  where  the  judiciary  of  a  country  is  inspired  on  the 
whole  by  the  spirit  of  loyalty  to  duty  and  conscientious- 
ness, —  and  we  shall  see  later  to  what  extent  this  spirit 
is  developed  and  strengthened  by  the  vocation  itself  — 
there  the  danger  arising  from  the  servility  and  lack  of 
character  of  a  small  fraction  of  the  judiciary  is  really 
not  very  great.  The  danger  would  be  great  only  if  the 
the  State  authorities  had  it  in  their  power  to  pick  out 
the  judges  in  a  particular  case  or  to  compose  the  court 


304  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

for  a  given  action.  Under  these  conditions  it  would 
really  not  be  difficult  for  them  to  bring  together  the  use- 
ful instruments;  and  arbitrary  officials  have  always  made 
use  of  such  means  to  carry  out  their  aims.  The  Star 
Chamber  of  Henry  VH  and  the  High  Commission  of 
Elizabeth  in  England,  the  "Central  Commission  of 
Investigation"  appointed  by  the  earlier  German  con- 
federacy in  Mayence  (1819)  "for  the  purpose  of  further 
investigating  the  revolutionary  activities  and  demagogic 
associations  discovered  in  several  States  of  the  confed- 
eracy," and  the  Central  Commission  of  Investigation  in 
Frankfort  (1833)  devoted  to  the  same  purpose,  ha\e 
shown  by  a  warning  and  memorable  example  what  the 
nations  may  expect  when  despotism  and  absolutist 
tyranny  select  their  own  judges.  But  they  owe  it  to  these 
very  experiences  that  the  more  recent  constitutions  have 
forbidden  on  principle  all  such  regulations.  This  is  the 
basis  of  the  eminently  political  side  of  the  doctrine  of  the 
judiciary  and  the  province  of  courts,  which  the  jurist  loses 
sight  of  only  too  easily  when  he  treats  them  in  a  purely 
dogmatic  way. 

But  the  arrangement  has  its  weak  side.  The  latter 
is  found  in  the  State  authorities  appointing  the  judges 
to  the  courts.  The  State  authorities  cannot,  it  is  true, 
select  their  own  court,  but  they  appoint  the  judges  who 
form  the  court.  Their  legal  constraint  as  far  as  the  court 
is  concerned  may  therefore  be  paralyzed  by  their  admin- 
istrative freedom  in  reference  to  the  choice  of  persons. 
The  State  authorities  transfer  the  inconvenient  persons 
to  another  court  and  put  others  more  compliant  in  their 
places.     Then  they  have  the  court  as  they  wish  it. 

There  is  no  security  in  my  opinion  against  this  danger. 
The  State  authorities  offer  the  inconvenient  judge  a 
better  place  and  he  goes.  The  regulation  that  a  judge 
cannot  be  transferred  against  his  will  offers  no  adequate 


§U]      SOCIAL  MECHANICS— COERCION        305 

protection  against  this.  He  simply  makes  room  for  his 
successor  for  whom  the  place  was  intended.  But  the 
State  authorities  will  not  allow  any  encroachment  of 
their  right  to  fill  judicial  positions  according  to  their 
judgment.  And  all  the  means  that  might  be  invented 
to  prevent  the  possibility  of  applying  this  right  dis- 
honestly in  the  manner  indicated  are  seen  in  advance 
to  be  impracticable.  There  is  nothing  left,  therefore, 
except  to  recognize  that  the  possibility  of  the  govern- 
ment exercising  an  influence  on  the  administration  of 
justice  cannot  be  removed  by  law,  and  protection  against 
this  danger  should  be  looked  for  simply  in  public  opinion 
and  the  feeling  of  justice  and  honor  of  the  government 
itself.  For  the  government  to  fill  the  judicial  positions 
in  a  court  of  justice  with  a  special  purpose  in  view  is  a 
step  so  striking  and  so  evident  in  its  motive  that  they 
must  expect  to  see  the  people  judge  it  as  on  the  same 
line  with  open  violation  of  justice.  Whether  the  gain 
is  worth  the  cost,  that  is  the  question.  We  need  not  go 
too  far  into  the  past  to  find  support  for  our  statement, 

I  have  spoken  so  far  exclusively  of  the  professional 
judge,  i.e.,  the  permanent,  learned,  and  salaried  judge. 
And  the  result  of  my  discussion  consists  in  the  conclu- 
sion that  it  is  not  possible  to  make  the  administration 
of  justice  completely  independent  of  the  State  authori- 
ties in  this  form  of  the  judicial  office.  On  the  other  hand 
there  is  one  form  of  court  which  really  solves  this  prob- 
lem completely,  and  that  is  the  jury.  The  juryman  has 
nothing  either  to  fear  or  to  hope  from  the  government. 
His  appearance,  i.e.,  the  choice  of  a  particular  juryman, 
is  too  sudden  and  incalculable,  his  function  too  brief 
to  make  an  attempt  at  subornation  on  the  part  of  the 
government  practicable.  Time  and  place  put  insur- 
mountable difficulties  in  the  way.  If  the  ideal  of  the 
judge  depended  merely  upon  his  independence  of  the 


306  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlii 

government,  there  would  be  no  more  perfect  institu- 
tion than  the  jury.  But  dependence  upon  the  govern- 
ment is  not  the  only  dependence  which  we  have  to  fear 
in  the  judge.  Whether  he  allows  himself  to  be  guided 
by  his  political  and  religious  prejudices,  by  a  side  glance 
at  public  opinion  and  the  press,  by  the  blame  or  praise 
of  his  friends,  by  the  authority  of  one  of  his  fellow  jury- 
men, or  whether  his  judgment  is  influenced  by  regard 
for  the  government,  what  difference  does  it  make?  We 
cannot  speak  of  real  independence  either  in  the  one  case 
or  in  the  other.  In  all  these  cases  the  judge  is  not  what 
he  should  be. 

The  only  consideration,  then,  for  deciding  in  favor  of 
the  one  or  the  other  institution  is,  which  of  the  two 
promises  the  relatively  higher  measure  of  independence 
and  the  greater  security  for  carrying  out  the  law.  And 
here,  I  think,  the  decision  should  not  be  doubtful.  Obedi- 
ence to  the  law  is  the  first  virtue  of  the  judge;  but  the 
obedience  of  the  judge,  like  that  of  the  soldier,  must  first 
be  learned.  As  military  discipline  becomes  by  long  serv- 
ice not  merely  a  habit,  but  second  nature,  to  the  extent 
that  an  old  soldier  feels  antipathy  to  insubordination 
and  disorder,  so  it  is  with  the  judge's  obedience  to  the 
law.  It  is  the  beautiful  fruit  of  all  continued  exercise 
of  a  given  virtue  that  habit  not  merely  facilitates  it, 
but  makes  it  a  necessity,  so  that  a  person  cannot  leave 
it  without  losing  in  his  own  esteem.  This  is  true  in  a 
higher  degree  when  the  exercise  of  this  virtue  consti- 
tutes the  vocation  and  the  duty  of  an  entire  class.  Here 
there  is  added  besides,  the  habit  of  the  class  and  the 
power  of  custom  developed  therefrom,  i.e.,  the  special 
ethics  and  honor  of  the  class.  And  the  disposition  re- 
sulting therefrom  becomes  so  powerful  and  compelling 
within  the  class  itself  that  no  member  can  ignore  it  with- 
out  suffering  considerable   injury.      The   fulfilment    of 


§.11]      SOCIAL  MECHANICS— COERCION        307 

the  duty  incumbent  upon  the  class  becomes  a  matter 
of  honor,  i.  e,  a  condition  of  the  respect  of  others  and 
of  self-respect.  It  is  only  the  class  that  develops  the 
qualities  of  its  profession  to  such  an  extent  that  the 
novice  who  enters  it  is  seized  by  the  class  spirit  and  the 
feeling  of  class  honor,  and  is  guided  in  the  right  path 
even  before  he  has  gained  the  conviction  of  their  neces- 
sity through  individual  experience.  It  is  the  treasure 
of  peculiar  experiences  and  views  which  accumulates 
gradually,  and  in  which  every  new  member  participates 
without  his  knowledge  and  desire,  guarding  and  preserv- 
ing it  in  turn,  and  handing  it  on  after  him.  It  is  the 
unwritten  law  of  the  class  developed  in  the  form  of  the 
class  spirit. 

The  two  factors  just  developed,  viz.,  the  constant 
practice  of  a  virtue  elevated  to  a  duty  and  a  life-work, 
and  the  supporting,  educating  and  compelling  influence 
which  the  tradition  of  the  class  exerts  upon  it,  these  two 
determine  the  superiority  of  the  professional  judge  to 
the  occasional,  as  is  the  juryman.  The  advantage  which 
the  former  has  in  comparision  is  not  merely  the  technical 
advantage  of  the  specialist  over  the  amateur  in  greater 
knowledge,  readiness  and  cultivation  of  judgment,  but 
it  is  also  moral,  namely  the  habit  of  subordination  to 
the  law,  the  exercise  of  the  will  in  a  definite  direction. 
As  the  soldier  has  to  learn  subordination  in  the  strict 
school  of  military  discipline,  so  must  the  judge  learn 
obedience  to  the  law  in  the  practice  of  the  administra- 
tion of  justice.  Practice  in  judicial  decision  is  the  school 
of  justice.  That  which  makes  the  judge  must  be  learned, 
namely,  strict  obedience  to  the  law,  closing  one's  eyes 
to  all  respect  of  persons,  equal  measure  for  the  vulgar 
and  the  respectable,  the  rascal  and  the  man  of  honor, 
the  rich  usurer  and  the  poor  widow;  closing  the  ear 
to    complaints    of    the    poor    and    miserable,    and    the 


308  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

lamentations  of  their  dependents,  from  whom  the  judge's 
decision  will  take  away  a  husband  and  father.  It  is  not 
the  bad  man  in  him  he  must  suppress,  but  the  good;  and 
this  is  the  hardiest  test  which  the  service  of  justice  im- 
poses, similar  to  that  demanded  of  the  soldier  who 
must  shoot  his  comrade.  For  it  is  not  the  base  motive 
that  entices  one  in  this  case  from  the  law  but  the  noble, 
—  humanity,  sympathy,  mercy.  Now  let  us  suppose  — 
to  fill  our  measure  to  the  brim  —  a  case  in  which  the 
law  which  the  judge  must  carry  out  is  in  diametrical 
opposition  to  his  own  feeling  of  justice.  Imagine  a  case 
in  which  the  law  recognizes  capital  punishment,  and  the 
judge  is  doubtful  in  his  own  mind  whether  the  act  should 
be  punished  at  all,  and  you  will  form  an  idea  of  what  it 
means  to  pay  obedience  to  the  law.  Can  we  expect  that 
a  novice  should  be  equal  to  this  task,  who  takes  his  seat 
as  a  juryman  today  to  leave  it  forever  the  next  day? 
You  might  just  as  well  expect  the  same  discipline  from 
a  national  guardsman  as  from  the  professional  soldier. 
As  the  latter  is  different  from  the  former,  so  is  the  pro- 
fessional judge  different  from  the  juryman.  The  former 
is  the  professional  soldier  in  the  service  of  justice,  with 
whom  the  exercise  of  justice  has  become  a  habit  and 
second  nature,  and  who  must  pledge  his  honor  for  it. 
The  latter  is  the  militiaman,  to  whom  his  uniform  and 
arms  are  something  strange,  and  who,  when  he  must 
play  the  soldier  for  once,  feels  himself  not  the  soldier, 
but  the  citizen.  He  may  wear  everything  which  denotes 
the  soldier  outwardly,  but  he  misses  that  which  makes 
the  soldier  inwardly:  the  full  sense  of  discipline  and 
subordination. 

It  is  for  experience  to  decide  whether  the  judgment 
which  I  have  thus  expressed  of  the  juryman  is  too  harsh. 
Experience  shows  us  cases  ever^-where  in  which  the  facts 
of  the  crime  were  as  clear  as  daylight,  and  yet  the  jury 


§11]      SOCIAL  MECHANICS  — COERCION        309 

acquitted  the  accused.  It  is  an  open  contempt  for  the 
law,  which  they  presumed  to  disobey  because  it  did  not 
agree  with  their  opinion. 

But  if  the  jury  is  to  have  the  power  to  measure  the 
guilt  of  the  accused  not  according  to  the  law,  but  accord- 
ing to  their  subjective  feeling,  as  actually  happened  once 
in  Rome  in  the  popular  court  for  criminal  law,  let  this 
power  be  given  them  constitutionally.  But  as  long  as 
this  has  not  been  done,  as  long  as  it  is  not  the  business 
of  the  jury  to  sit  in  judgment  over  the  law  instead  of 
over  the  accused,  every  such  act  is  arbitrary  and  an 
open  revolt  against  law  and  order.  Whether  it  be  the 
State  or  the  jury  that  tramples  the  law  under  foot, 
whether  it  is  done  to  punish  the  innocent  or  to  acquit  the 
guilty,  it  is  all  one;  the  law  is  disregarded.  And  it  is 
not  merely  a  particular  law  that  is  disregarded.  It  is 
possible  indeed  that  it  really  challenged  opposition, 
though  even  this  palliation  in  many  cases  does  not  apply. 
But  in  this  particular  law  the  respect  and  majesty  of 
law  in  general  is  injured;  its  power  is  put  in  question, 
and  the  belief  in  its  inviolability  shattered.  The  secu- 
rity of  the  law,  which  rests  upon  the  certainty  that  the 
law  will  be  applied  uniformly  in  all  cases,  ceases.  In 
place  of  the  objective  law,  the  same  for  all,  we  have  the 
changeable,  incalculable,  subjective  feeling  of  the  jury, 
arbitrariness  and  chance.  Here  the  accused  is  acquitted ; 
there,  for  the  like  offence,  he  is  condemned.  The  one 
goes  free,  the  other  goes  to  prison  or  mounts  the  scaf- 
fold. 

And  who  will  assure  us  that  a  court  which  places  it- 
self above  the  law  to  acquit  the  guilty  will  not  some  other 
time  do  the  same  to  condemn  the  innocent?  Once  the 
firm  path  of  the  law  is  abandoned,  the  way  opens  to 
the  right  as  well  as  to  the  left,  and  no  one  can  tell  in 
advance  in  what  direction  the  stream  which  has  once 


310  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

broken  through  its  dam  will  take  its  course.  It  is  only 
a  question  of  what  mood  will  get  the  upper  hand  in 
the  masses  in  a  time  of  excitement.  Today  the  Royalists 
condemn  the  Republicans,  tomorrow  the  Republicans 
the  Royalists.  Today  the  Conservatives  condemn  the 
Liberals,  tomorrow  the  Liberals  will  condemn  the 
Conservatives.  The  correction  of  the  law  by  the 
jury  is  a  two-edged  sword  which  may  in  certain 
circumstances  strike  in  quite  a  different  direction 
from  that  intended  and  expected  by  many  of  its  sup- 
porters. 

To  sum  up  my  judgment  of  the  institution  of  the 
jury,  I  can  only  say  that  apart  from  the  single  factor  of 
its  independence  of  the  government,  the  jury  in  all  other 
respects  combines  in  itself  those  qualities  which  a  judge 
should  not  have.  Without  the  knowledge  of  the  law 
which  study  alone  can  give ;  without  the  sense  of  legality 
which  the  class  alone  can  inculcate ;  without  the  feeling 
of  responsibility  which  the  office  alone  can  develop; 
without  the  independence  of  judgment  which  prac- 
tice alone  can  form,  —  without  all  these  qualities  the 
men  from  the  "people"  take  their  places  in  the  box, 
perhaps  already  prejudiced  by  the  judgment  which 
has  been  formed  on  the  case  in  the  public  mind  or 
by  the  press.  They  are  easily  led  and  determined  by 
the  art  of  the  defender,  who  knows  how  to  hit  the  point 
where  he  has  to  apply  his  lever,  namely  their  heart, 
their  humanity,  their  prejudices,  their  interests,  their 
political  tendency.  They  are  accessible  to  the  influ- 
ence of  authority  in  voting,  and  swayed  Jby  the  con- 
fidence with  which  a  view  is  presented  to  them,  though 
it  be  different  from  that  in  favor  of  which  they  would 
have  otherwise  decided.  For  they  console  themselves 
with  the  thought  that  the  others  must  know  better, 
and  throw  the  burden  of  responsibility  from  themselves 


§11]      SOCIAL  MECHANICS— COERCION        311 

upon  the  shoulders  of  those  others.  "Good  people  but 
poor  musicians,"  they  are  mere  militia  of  the  adminis- 
tration of  justice.  One  real  soldier  is  worth  more  than 
a  dozen  of  militia. 

And  is  all  this  to  be  outweighed  by  the  one  factor  of 
independence  of  the  government?  We  ask  ourselves 
in  astonishment,  how  could  an  institution  so  wholly 
imperfect  gain  such  successes,  and  find  an  open  door 
everywhere?  It  is  clear  that  powerful  causes  must 
have  assisted  in  the  process.  And  it  is  actually  so.  The 
institution  of  the  jury  freed  our  administration  of  jus- 
tice from  a  two-fold  pressure  which  weighed  heavily 
upon  it  hitherto;  that  of  absolutism  and  of  the  medi- 
aeval theory  of  evidence  —  a  service  in  both  cases  of 
inestimable  worth.  In  both  directions  it  was  necessary 
to  break  completely  with  the  past;  and  there  was  no 
means  more  appropriate  for  the  purpose  than  the  in- 
troduction of  the  institution  above  named.  The  jury- 
man who  is  quite  independent  of  the  government  took 
the  place  of  the  dependent  judge  for  that  branch  of  the 
administration  of  justice  in  which  the  influence  of  the 
governmental  authorities  was  most  to  be  feared,  namely, 
the  criminal  law.  In  this  way  absolutism  lost  its  most 
effective  means  of  suppressing  all  endeavors  directed 
against  it.  And  the  feeling  of  the  security  of  law  and 
the  possibility  of  assured  legal  progress  took  the  place 
of  the  earlier  feeling  of  the  insecurity  of  law. 

This  gave  us  Archimedes'  point  for  lifting  the  hither- 
to existing  world  out  of  its  hinges.  From  this  fixed 
point  of  vantage  has  proceeded,  according  to  my  opinion, 
all  that  stamps  our  present  legal  status  internally  as 
well  as  externally.  Internally,  the  strengthening  of  the 
national  feeling  for  right,  and  the  removal  of  that  dull 
submissiveness  with  which  in  the  last  century  the  people 
bore  the  most  brutal  acts  of  mean,  arbitrary  despots; 


312  THE   CONCEPT   OF   PURPOSE    [Cii.  Viii 

the  general  diffusion  of  the  knowledge  of  the  sacredness 
and  inviolabiUty  of  the  law,  as  the  palladium  of  civil 
society,  as  the  power  before  which  the  bearer  of  the 
highest  governmental  authority  must  bow,  as  well  as 
the  most  insignificant  subject.  To  this  feeling  for  right 
we  owe  that  jealous  watching  over  the  law,  our  hard- 
won  treasure,  and  the  determination  and  courage  to 
maintain  the  same,  and  on  the  part  of  the  government 
the  corresponding  fear  of  violating  it.  Externally,  the 
realization  of  the  idea  that  the  administration  of  justice 
is  independent  of  the  arbitrary  control  of  the  govern- 
ment, through  the  constitutional  security  of  the  judicial 
office  (irremovability  of  the  judge,  prohibition  of  cabi- 
net justice).  Trial  by  jury  formed  the  watchword  of 
the  reform  of  our  law.  In  the  eyes  of  the  people  it  was  a 
question  directed  to  the  governments,  "Shall  it  be  jus- 
tice or  despotism?"  And  it  exerted  its  wholesome  effects 
even  before  it  came,  by  the  mere  fact  of  its  being  in 
sight,  by  the  fact  that  it  existed  in  other  places.  The 
legal  institutions  of  one  nation  reacted  from  a  distance 
upon  the  whole  civilized  world. 

Trial  by  jury  therefore  marks  the  transition  from  abso- 
lutism to  government  by  law,  and  this  service  w^e  shall 
never  forget.  With  all  the  defects  that  cling  to  it,  it 
was  not  paid  for  too  dearly.  But  the  temporary  justifi- 
cation of  an  institution  is  one  thing,  the  permanent  is 
another.  The  former  I  willingly  grant  for  the  jury,  the 
latter  I  contest.  And  I  am  convinced  that  a  time  will 
come  when,  in  safe  possession  of  the  security  of  the  law, 
we  will  say  to  the  jurymen,  "The  Moor  has  done  his 
duty,  the  Moor  can  go."  For  he  is  a  Moor  and  will 
remain  one,  and  all  the  art  of  his  supporters  will  not  be 
able  to  wash  him  white.  To  be  sure,  much  soap  will  be 
expended  uselessly  before  people  will  be  generally  con- 
vinced of  the  fact. 


Ui]      SOCIAL  MECHANICS  — COERCION        313 

The  second  service,  too,  which  the  institution  of  the 
jury  has  done  us,  viz.,  the  removal  of  the  mediaeval 
theory  of  evidence,  is  a  highly  valuable  one,  but,  like 
the  first,  of  a  temporary  nature.  One  might  suppose 
that  this  service  can  be  contested  on  the  ground  that 
there  was  no  real  need  for  this  institution;  that  the 
theory  of  evidence  might  have  been  removed  by  law 
for  the  professional  judge.  This  would  be  unjust  accord- 
ing to  my  opinion.  It  is  of  no  use  to  pour  new  wine  into 
old  bottles.  The  break  with  the  old  theory  of  evidence 
could  be  accomplished  much  more  easily  and  safely  by 
means  of  the  lay  judge  than  by  means  of  the  professional 
judge  for  whom  its  application  had  become  a  second  na- 
ture. Not  merely  the  theory,  but  the  habit  also  had  to  be 
removed.  But  in  this  matter,  too,  there  is  no  reason 
why  the  Moor  should  be  retained  after  he  has  done  his  duty. 

The  disapproving  judgment  which  I  have  just  now 
passed  upon  the  institution  of  the  jury  is  not  based  on 
the  fact  that  the  juryman  is  as  a  rule  a  layman.  The 
decisive  point  for  me  is  not  the  contrast  of  layman  and 
jurist,  but  that  of  the  sporadic  judge  and  the  permanent. 
Against  the  layman  as  a  constant  judge  placed  by  the 
side  of  the  jurist,  i.  e.,  the  lay  judge,  I  have  nothing  to 
object.  I  believe,  on  the  contrary,  that  this  form  of 
taking  a  man  from  the  people  to  assist  in  the  adminis- 
tration of  justice  has  its  future.  But  the  vitality  of  the 
institution  of  lay  judges  is  conditioned,  according  to 
my  opinion,  by  two  requirements  for  its  organization. 
One  is  that  the  service  of  the  lay  judge  should  be  long 
enough  to  educate  him  in  the  exercise  of  the  judicial 
function.  The  second  condition  is  that  provision  should 
be  made  by  law  for  maintaining  a  fixed  body  amid  the 
change  of  the  particular  members,  which  should  be  in  a 
position  to  preserve  the  tradition,  and  to  hand  down  to 
the  newly  entering  members  their  developed  sense  of 


314  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

legality.  In  short,  the  institution  should  be  so  organ- 
ized that  it  be  assured  of  the  two  decisive  advantages  of 
the  permanent  judicial  office,  mz.,  a  long  schooling  in 
the  administration  of  justice,  and  the  moral  disposition 
of  the  individual  and  the  class  discipline  controlling 
him,  which  are  developed  therefrom.  The  institution 
of  lay  judges  would,  in  these  circumstances,  give  us  a 
solution  of  the  problem  which  we  sought  for  in  vain  in 
the  salaried  professional  judge  (p.  303) ;  namely,  it  would 
present  us  with  a  permanent  judge  who  could  be  com- 
pletely independent  of  the  government.  Experience 
must  show  whether  the  essential  condition  of  the  insti- 
tution, viz.,  the  necessary  number  of  intelligent  laymen 
who  are  in  a  position  to  devote  themselves  for  a  length  of 
time  without  pay  to  the  service  of  justice,  will  be  created 
everywhere. 

3.  The  Limits  of  the  Subordination  of  the  Government 
to  the  Law.  By  the  law  the  government  ties  its 
own  hands.  How  far  should  the  government  do  this? 
Absolutely?  In  this  case  every  man  would  have  to 
obey  the  law  only.  The  government  would  have  no 
right  to  command  or  forbid  any  thing  which  was  not  pro- 
vided for  in  the  law.  The  law  of  the  State  would  thus 
be  placed  on  the  same  line  as  the  law  of  nature.  As  in 
nature  so  in  the  State,  the  law  would  be  the  only  power 
which  moves  every  thing.  Chance  and  arbitrariness 
would  be  completely  suppressed  on  principle,  and  the 
machinery  of  the  State  would  go  like  clock-work,  which 
carries  out  all  the  prescribed  motions  with  unfailing  cer- 
tainty, regularity  and  uniformity. 

This  would  be  the  just  State,  as  it  seems,  as  perfect 
as  one  can  think  it.  Only  one  quality  would  be  miss- 
ing— vitality.  Such  a  State  would  not  be  able  to  exist 
a  month.  In  order  to  be  able  to  do  so,  it  would 
have  to    be   what   it   is    not,    clock-work.      Exclusive 


8  11.]      SOCIAL  MECHANICS— COERCION        315 

domination  of  the  law  is  synonymous  with  the  resignation, 
on  the  part  of  society,  of  the  free  use  of  its  hands. 
Society  would  give  herself  up  with  bound  hands  to 
rigid  necessity,  standing  helpless  in  the  presence  of  all 
circumstances  and  requirements  of  life  which  were  not 
provided  for  in  the  law,  or  for  which  the  latter  was 
found  to  be  inadequate.  We  derive  from  this  the  maxim 
that  the  State  must  not  limit  its  own  power  of  spon- 
taneous self-activity  by  law  any  more  than  is  absolutely 
necessary  • —  rather  too  little  in  this  direction  than  too 
much.  It  is  a  wrong  belief  that  the  interest  of  the 
security  of  right  and  of  political  freedom  requires  the 
greatest  possible  limitation  of  the  government  by  the 
law.  This  is  based  upon  the  strange  notion  that  force  is 
an  evil  which  must  be  combated  to  the  utmost.  But 
in  reality  it  is  a  good,  in  which,  however,  as  in  every 
good,  it  is  necessary,  in  order  to  make  possible  its  whole- 
some use,  to  take  the  possibility  of  its  abuse  into  the 
bargain. ^^  Fettering  force  is  not  the  only  means  of  pre- 
venting that  danger.  There  is  another  means  which 
does  the  same  service :  personal  responsibility.  This  was 
the  method  of  the  ancient  Romans.  They  had  no 
scruples  in  granting  their  magistrates  such  a  fullness  of 
power  as,  to  us,  savors  of  monarchy;  but  they  demanded 
of  them  a  strict  account  when  they  laid  down  their 
office.^" 

But  however  wide  the  scope  which  the  law  allows  to 
freedom,  there  will  always  be  the  possibility  of  unusual 
cases  in  which  the  government  finds  itself  placed  before 
the    alternative  of   sacrificing    either   the  law    or   the 

••' I  have  in  mind  the  happy  saying  of  Cicero,  "De  Legib."  Ill.ch.  10, 
concerning  the  tribunate,  "Fateor  in  ipsa  ista  potestate  inesse  quid- 
dam  mali,  sed  bonum  quod  est  quaesitum  in  ea,  sine  isto  malo  non 
haberemus." 

"*See  my  "Geist  des  romischen  Rechts,"  II,  §  35. 


316  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

welfare  of  society.  What  shall  be  the  choice?  A  well- 
known  saying  advises,  "fiat  justitia,  pereat  mundus." 
This  sounds  as  if  the  world  existed  for  the  sake  of  jus- 
tice, whereas  in  reality  justice  exists  for  the  sake  of  the 
world.  If  the  two  stood  in  a  relation  of  opposition  to 
each  other  the  maxim  would  have  to  read,  "pereat  jus- 
titia, vivat  mundus."  In  reality,  however,  this  is  not 
the  case,  for  the  two  as  a  rule  go  hand  in  hand.  The 
motto  should  read,  "vivat  justitia,  ut  floreat  mundus." 

But  it  is  quite  a  dififerent  question  whether  the  gov- 
ernment must  respect  the  existing  law  absolutely  and 
without  any  exception.  And  I  do  not  hesitate  at  all  to 
answer  this  question  most  decidedly  in  the  negative. 

Let  us  take  a  concrete  instance.  A  fortress  is  being 
besieged,  and  it  appears  that  in  order  to  withstand  the 
siege  it  is  necessary  to  demolish  some  buildings  in  private 
possession.  Now  let  us  suppose  that  the  constitution 
of  the  land  had  declared  private  property  absolutely 
inviolable,  without  taking  into  consideration  such  cases 
of  necessity  as  the  one  in  question,  and  that  the  owners 
of  the  buildings  refuse  to  give  their  consent  to  have  them 
demolished.  Must  the  commander  of  the  fortress,  in 
order  by  all  means  not  to  encroach  upon  private  property, 
sacrifice  the  fortress  and  with  it  perhaps  the  last  bulwark 
upon  which  the  preservation  of  the  whole  State  depends? 
A  commander  who  did  this  would  lose  his  head.  So 
the  breaking  through  of  a  dam,  or  a  fire,  or  similar  cases 
of  necessity  present  a  common  danger,  which  can  be 
warded  off  only  by  encroaching  upon  private  property. 
Shall  the  authorities  respect  property  and  allow  the 
devastating  element  to  take  its  course? 

Natural  feeling  suggests  the  decision  at  once  to  every 
one,  but  it  is  our  problem  to  justify  it  scientifically.  The 
justification  lies  in  the  point  of  view  that  the  law  is  not 
an  end  in  itself,  but  only  a  means  to  an  end.     The  end 


§11]      SOCIAL  MECHANICS  — COERCION        317 

of  the  State  as  well  as  of  the  law  is  the  establishment 
and  security  of  the  conditions  of  social  life  (see  below, 
§  12).  Law  exists  for  the  sake  of  society,  not  society 
for  the  sake  of  law.  Hence,  it  follows  that  when  in 
exceptional  cases,  as  in  those  above  mentioned,  the 
relations  are  such  that  the  government  finds  itself  facing 
the  alternatives  of  sacrificing  either  the  law  or  society, 
it  is  not  merely  empowered,  but  in  duty  bound,  to 
sacrifice  law  and  save  society.  For  higher  than  the 
law  which  it  violates  stands  the  consideration  for  the 
preservation  of  society,  in  the  service  of  which  all  laws 
must  stand,  the  "lex  summa,"  as  Cicero  ("De  Legibus" 
HI,  3)  calls  it  in  his  well-known  saying,  "Salus  populi 
summa  lex  esto."  A  private  person  may,  in  such  a  case, 
where  there  is  a  conflict  between  saving  his  own  life  and 
encroaching  upon  the  right  of  others,  sacrifice  the  former, 
although  the  law  does  not  demand  it  of  him  (right  of 
inevitable  necessity).  He  sacrifices  himself  only.  But 
if  the  government  did  the  same  thing,  it  would  commit 
a  mortal  sin.  For  it  must  carry  out  the  law  not  for  its 
own  sake  but  for  the  sake  of  society,  and  as  the  sailor 
throws  the  cargo  overboard  when  it  is  a  question  of  sav- 
ing the  ship  and  the  crew,  so  the  government  may  and 
must  deal  with  the  law  if  this  is  the  only  way  to  preserve 
society  from  a  great  danger.  These  are  the  "saving 
deeds,"  as  our  language  fittingly  calls  them;  a  designa- 
tion which  embraces  their  whole  theory,  their  justifi- 
cation as  well  as  their  requisite  conditions.  It  is  true 
that  conscienceless  statesmen  have  played  wantonly 
with  them;  that  the  welfare  of  the  State  often  served 
only  as  a  pretext  or  a  cover  for  arbitrary  acts  of  despo- 
tism ;  but  in  principle  the  authority  of  the  government 
to  do  these  acts  can  no  more  be  disputed  than  in 
the  above  case  the  right  of  the  sailor  to  throw  the 
cargo  overboard.     It  is  the  right  of  inevitable  necessity 


318  THE  CONCEPT  OF   PURPOSE    [Ch.  viii 

accompanying  the  state  of  necessity  which  the  govern- 
ment thus  exercises,  and  which  can  no  more  be  denied  to 
it  than  to  the  private  person.  The  government  not  only 
may  apply  it,  but  it  must.  But  the  two  are  conditioned 
by  each  other;  it  may  where  it  must. 

At  the  same  time,  however,  the  open  violation  of  the 
laws  is  a  deplorable  proceeding  which  legislation  must 
spare  the  government  as  far  as  possible.  It  can  be  done 
by  bringing  the  right  of  inevitable  necessity  itself  under 
the  form  of  law,  as  is  done  more  or  less  in  all  modern 
laws  and  State  constitutions.  The  regulations  having 
this  object  in  view  may  be  designated  as  the  safety 
valves  of  the  laiv.  They  open  an  outlet  to  necessity  and 
thereby  prevent  a  violent  explosion." 

"  A  detailed  discussion  of  them  is  unnecessary,  it  is  sufficient 
simply  to  enumerate  them.  They  are  the  following :  Encroachments 
of  the  State  force  upon  private  property  —  and  first  of  all  upon 
possession  by  administrative  measures  without  previous  legal  pro- 
cedure {condition  of  necessity,  for  example,  in  case  of  danger  from 
fire  or  flood,  war,  etc.).  Deprivation  of  ownership  by  course  of  law, 
i.  e.,  expropriation  —  whether  in  the  form  of  an  individual  statute 
(p.  257),  i.  e.,  the  statute  of  expropriation,  or  by  carrying  out  through 
judicial  or  administrative  authorities  the  norms  laid  down  in  advance 
for  the  given  case.  Temporary  suspension  of  certain  statutory  regu- 
lations (for  example,  the  protest  of  promissory  notes  in  France  dur- 
ing the  last  war)  or  of  normal  legal  aid  ("justitium"  in  Rome), 
proclamation  of  a  state  of  war  or  of  martial  law  (in  Rome  the  naming 
of  a  "dictator";  "Senatus  consultum:  videant  consules,  ne  quid 
detriment!  capiat  res  publica").  Removal  of  subsisting  rights  by 
legislation  (for  example  of  serfdom,  of  the  rights  of  banishment  and 
coercion;  "novae  tabulae"  in  Rome,  etc.)-  Encroachments  upon 
such  rights  by  a  statute  with  retrospective  force.  All  these  measures 
come  under  one  and  the  same  point  of  view,  and  it  shows  a  defect 
in  the  power  of  abstraction  when  one  grants  the  admissibility  on 
principle  of  some  of  them  and  denies  it  to  others,  as  has  often  been 
the  case  in  legal  literature  as  well  as  in  legislation.  Note  in  reference 
to  the  question  of  the  regulation  of  the  retrospective  force  of  a  statute, 
even  in  the  case  of  a  man  so  radical  otherwise  as  F.  Lassalle,  "System 
der  erworbenen  Rechte,"  I,  pp.  3-11. 


§11]      SOCIAL  MECHANICS  — COERCION        319 

The  question  whether  the  requisite  conditions  are 
present  for  such  encroachments  is  one  concerning  the 
politics  of  the  particular  case,  and  need  not  be  discussed 
here.  That  the  government  must  reimburse  in  these 
cases  the  private  person  affected  by  these  encroach- 
ments is  a  requirement  that  follows  from  the  nature  of 
the  social  relation.  The  social  relation  is  based  upon 
the  principle  of  equality  in  the  sense  developed  above 
(p.  277),  and  it  is  in  accordance  with  this  principle  that 
that  which  is  for  the  good  of  all  must  also  be  borne  by  all. 

The  right  of  pardon  also  comes  under  the  category  of 
disregard  of  the  law  by  the  government.  Formally 
considered,  it  appears  as  an  interference  with  the  order 
of  law.  The  punishment  of  the  criminal,  which  is  threat- 
ened by  the  law  and  which  has  already  been  recognized 
against  him,  is  afterwards  remitted.  The  law  is  there- 
fore in  reality  not  carried  out.  The  right  of  pardon 
seems  therefore  incompatible  with  the  idea  of  the 
administration  of  justice.  What  becomes  of  the  law 
when  it  is  applied  in  one  case  and  not  in  the  other? 
What  becomes  of  equality  before  the  law  when  the  recog- 
nized penalty  is  carried  out  in  the  case  of  one  criminal 
and  not  in  the  case  of  another?  It  is  pure  lawlessness 
that  sits  in  the  place  of  law  in  the  right  of  pardon,  the 
recognition  in  principle  of  arbitrariness  in  the  adminis- 
tration of  the  criminal  law. 

What  answer  have  we  to  this?  It  may  be  arbitrari- 
ness that  sits  in  the  place  of  law,  but  it  need  not  —  and 
it  must  not  be.  The  place  must  not  be  given  to  arbi- 
trariness but  to  justice;  to  justice,  which  finds  that  its 
spirit  was  not  properly  understood  in  a  particular  case 
by  the  law,  and  must  therefore  be  given  the  opportunity 
of  rectifying  its  error  and  thereby  saving  an  innocent 
man  from  suffering.  In  this  sense  we  may  define  pardon 
as  the  correction  in  a  particular  case  of  the  law  which 


320  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

has  been  recognized  to  be  imperfect;    in  short,  as  the 
self-correction  of  justice. 

But  the  imperfection  of  the  criminal  law  may  be  seen 
not  only  where  it  is  the  task  of  the  right  of  pardon  to  ob- 
viate it,  but  also  in  the  opposite  direction.  It  is  possible 
that  the  comprehensive  catalogue  of  crimes  which  legis- 
lation has  drawn  up  on  the  basis  of  long  experiences 
appears  defective  in  a  particular  case.  Refined  wicked- 
ness may  invent  new  crimes  which  are  not  provided  for 
by  law,  and  for  the  punishment  of  which  the  existing 
law  may  offer  a  handle  but  no  penalty  commensurate 
with  the  seriousness  of  the  offence. ^^  What  shall  be  done 
in  this  case?  Shall  justice  declare  itself  powerless  against 
the  fiend  who  threatens  society  in  a  manner  surpassing 
in  danger  all  the  crimes  of  the  law  which  are  provided 
with  penalties,  and  who  shows  an  abyss  of  depravity 
which  leaves  that  of  the  ordinary  robber  and  murderer 
far  behind?  Shall  justice  declare  itself  powerless  before 
such  a  fiend,  because  the  written  law  does  not  give  it  the 
possibility  of  inflicting  upon  him  the  penalty  he  deserves? 
The  answer  of  the  jurist  is,  Yes.  His  motto  is  the  well- 
known  saying,  "nulla  poena  sine  lege."  The  unsophis- 
ticated sense  of  right  of  the  people  demands  punish- 
ment here  also,  and  I  agree  with  them  completely.  That 
saying  just  quoted,  which  assumes  the  character  of  an 
absolute  postulate  of  justice,  has  really  only  a  limited 
justification.  It  is  meant  as  a  guarantee  against  arbi- 
trariness, and  this  task  it  fulfils.  But  the  highest  aim  of 
law  is  not  to  keep  away  arbitrariness  but  to  realize 
justice;  and  in  so  far  as  that  principle  stands  in  the 
way  of  this  it  is  unjustified.    The  problem  is  to  combine 

^^  I  name  as  an  example  the  well-known  case,  Thomas  in  Bremer- 
haven:  A  chest  provided  with  an  explosive  apparatus  was  placed  on 
board  for  the  purpose  of  destroying  the  ship  selected  for  its  transport, 
with  a  view  to  collecting  the  high  insurance  money- 


§111      SOCIAL  MECHANICS  — COERCION        321 

the  two  purposes;  and  it  is  a  question  of  finding  a  form 
which  will  afford  a  guarantee  that  the  release  of  the 
judge  from  the  positive  law  will  be  to  the  advantage 
of  justice  alone  and  not  also  of  arbitrariness.  For  this 
purpose  there  is  need  of  establishing  a  highest  court  of 
justice  above  the  law,  which  will,  by  the  manner  in 
which  it  is  constituted,  exclude  in  advance  all  apprehen- 
sion that  it  might  become  some  day  an  instrument  in 
the  hands  of  an  arbitrary  government. 

The  idea  which  I  have  just  expressed  is  already  real- 
ized in  fact.  In  Scotland  a  court  of  justice  of  this  kind 
exists.  But  even  if  it  did  not  exist  anywhere,  for  me  it 
is  not  a  question  of  what  is,  but  of  what  should  be;  of 
what  the  purpose  of  law  and  the  idea  of  justice  require. 
If  it  is  true  that  in  criminal  as  well  as  in  civil  law  the 
law  alone  must  rule,  then  there  must  be  no  pardon. 
If  the  latter  is  admitted,  as  is  the  case  among  all  civil- 
ized peoples,  then  the  principle  of  the  exclusive  domi- 
nation of  the  law  in  criminal  administration  is  thereby 
given  up.  The  principle  of  right  acknowledges  thereby 
that  it  cannot  get  along  with  the  positive  law  alone,  that 
it  must  have  the  higher  justice  which  stands  above  the 
law,  in  order  that  it  may  harmonize  in  a  particular  case 
the  penalty  with  the  requirements  of  the  sense  of  right. 
If  this  holds  in  one  direction,  why  not  in  the  other? 
Either  the  law  alone  absolutely  in  both  directions,  or  jus- 
tice above  the  law  in  both  directions.  The  highest  court 
of  justice  recommended  by  me  for  unusual  cases,  such 
as  legislation  has  not  taken  into  consideration,  is  nothing 
but  the  logic  of  the  right  of  pardon  followed  up  in  the 
opposite  direction.  The  two  are  different  in  direction 
only,  not  in  principle.  A  further  step  would  consist  in 
assigning  to  this  highest  court  standing  above  the  law 
the  exercise  of  the  right  of  pardon  also  in  the  name  of 
the  sovereign,  or  the  proposal  thereof  to  the  latter.     It 


322  THE  CONCEPT  OF   PURPOSE    [Ch.  vill 

would  thereby  receive  the  exaUed  mission  of  mediating 
between  the  formal  justice  of  written  law  and  the  mate- 
rial justice  standing  above  it;^  and  there  would  thus 
also  be  created  an  organ  for  the  development  of  the 
criminal  law  in  the  way  most  appropriate  for  it, 
viz.,  by  means  of  adjudications.  Perhaps,  too,  in  that 
case  the  jury  would  be  less  frequently  misled  to  acquit 
a  criminal  against  the  plain  facts.  In  addition  to  the 
two  formulae,  "guilty"  and  "not  guilty,"  they  would 
have  to  be  allowed  a  third  form  of  judgment,  viz., 
reference  to  the  highest  court,  the  "court  of  justice" 
("Gerechtigkeitshof"),  as  I  should  like  to  call  it.  Simi- 
larly in  cases  like  the  one  mentioned  above  (Thomas), 
the  public  prosecutor  should  be  given  the  right  to  pro- 
pose a  penalty  not  provided  for  by  law. 

In  the  form  just  outlined,  the  higher  judge,  placed 
superior  to  the  one  who  adjudicates  strictly  according 
to  the  written  law,  removes  the  imperfections  of  the 
law  in  the  spirit  of  the  legislator,  by  deciding  the  par- 
ticular case  as  the  legislator  would  have  decided  it 
when  he  issued  the  law.  But  this  form  of  the  matter 
must  not  be  confused  with  the  absolutely  free  and  unre- 
strained use  of  the  penal  power  which  was  applied  by 
the  Roman  people  in  the  "comitia  tributa,"  and  which 
I  do  not  by  any  means  intend  to  advocate.  To  be 
sure,  it  offered  the  advantage  of  the  unlimited  possi- 
bility of  individualization,  both  in  reference  to  the 
question  what  shall  be  considered  a  crime,  and  the 
degree  of  punishment.  But  this  advantage  was  com- 
pletely neutralized  by  the  fact  that  it  was  not  a  judicial 
authority,  but  the  sovereign  people,  accessible  to  all 
kinds  of  influences,  that  exercised  this  power  of  punish- 
ment freely  without  being  bound  by  the  restraint  of 

""Inter  aequitatem    jusque  interpositam  interpretationem,"  as 
Constantine  expresses  himself  in  Cod.  1.  14.  1. 


§11].     SOCIAL  MECHANICS  — COERCION       323 

any  law.    The  guarantees  which  are  found  in  the  sep- 
aration of  the  judicial  office  from  the  other  functions 
of  the  government   (p.  291)  are  here  entirely  wanting. 
I  am  not  defending  individualization  of  criminal  admin- 
istration in  general   (this  is  found  also  in  the  despot, 
who  pays  attention  to  no  law) ,  but  individualization  by 
a  judicial  authority.     The  idea  of  individualizing  the 
administration  of  justice  in  this  latter  form  has  been 
realized  in  the  later  civil  procedure  ("Formularprozess," 
formulary  procedure) ;    not  indeed  in  the  person  of  the 
ordinary  judge,  who  could  naturally  not   be  entrusted 
with  this  power,  but  in  the  person  of  the  praetor  who, 
by  his  position  and  the  advice  of  the  jurists  who  as- 
sisted  him    ("consilium"),   offered   a   guarantee   for   its 
proper  use.     In  his  quality  of  chief  of  the  entire  admin- 
istration of  the  civil  law  was  actually  included  that  of 
legislator.    It  was  his  task  and  his  duty  to  keep  the  law 
up  to  date;    and  as  he  did  so  by  laying  down  new  legal 
principles  in  his  edicts,  he  also  considered  himself  jus- 
tified and  called  upon  to  exclude  the  severities  of  the  old 
law  in  its  application  to  a  particular  case.     He  rejected 
charges  which  the  old  civil  law  recognized;    he  allowed 
pleas  which  were  not  provided  for  in  the  written  law; 
and  he  restored  lost  rights  ("restitutio  in  integrum"): 
in  short,  heexercised  in  the  particular  case  what  amounted 
to  a  criticism  of  the  existing  law.     He  was  the   living 
organ  of  the  law,  as  the  Roman  jurists  call  him  ("viva 
vox  juris  civilis"),   the   personification   of   the   idea   of 
justice;    not  the  justice  of  the  judge  who  is  bound  to 
the  law,  but  of  the  legislator  who  stands  above  the  law, 
who  always  excludes  it  when  it  seems  to  him  opposed 
to   justice.     The   praetor   accustomed    the    Romans    to 
the  idea  of  an  individualizing  justice  that  frees  itself 
from  the  existing  law;    and  they  had  so  little  fault  to 
find  with  it  that  the  institution  was  not  merely  enabled 


324  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

to  maintain  itself  for  centuries,  but  was  even  extended 
in  the  time  of  the  emperors.  Not  merely  did  the  em- 
perors assume  it  for  themselves  ("constitutiones  per- 
sonales").  but  they  also  granted  to  some  specially  trust- 
worthy jurists,  by  means  of  the  "jus  respondendi,"  the 
power  of  laying  down  the  law  in  a  particular  case  ("jura 
condere").®* 

Such  an  institution  is  foreign  to  our  present  admin- 
istration of  the  civil  law.  It  has  maintained  itself  with 
us  only  in  the  right  of  pardon.  In  the  administration 
of  the  civil  law  we  require  the  inviolable  application 
of  the  law;  and  we  take  the  severities  and  the  unfair- 
nesses into  the  bargain.  The  security  of  the  formal 
justice  of  the  judge  stands  higher  with  us  than  the  ad- 
vantages of  an  uncertain  material  justice,  behind  which 
arbitrariness  could  conceal  itself  only  too  easily. 

I  have  now  concluded  my  discussion  of  the  form  of 
law.     We  have  seen  how 

1.  Force  rises  from  an  individual  command  to  an 
abstract  command,  viz.,  the  norm,  and  how  then 

2.  The  unilateral  norm  rises  to  the  bilaterally  bind- 
ing norm,  viz.,  law,  and  how 

3.  The  law  produces  from  itself  the  mechanism  for 
its  realization   (administration  of  justice). 

Combining  these  three  factors,  the  picture  which 
we  have  gained  so  far  of  the  law  presents  itself  as  the 
political    mechanism   for   realizing    the    coercive   norms 

*^  "Auctoritas  conscribendarum  interpretandarumque  legum," 
Cod.  1. 17.  1  §4;  "legislatores"  Cod.  ibid.  2.  §20;  "Juris conditores," 
Cod.  1.  14.  12;  "Quibus  permissum  est  jura  condere,"  Caius,  I,  6. 
It  is  to  this  that  the  "inter  aequitatem  jusque  interposita  interpre- 
tatio"  of  Cod.  1.  14.  1  (p.  322,  note)  refers,  by  which  Constantine 
removed  the  regulation.  The  essence  of  it  can  be  stated  in  one 
word;  legislative  force  for  a  single  case  (which  is  pending  in  court); 
individualizing  justice  in  contradistinction  to  abstract  justice  by 
statute. 


§12].     SOCIAL  MECHANICS— COERCION        325 

recognized  by  the  State  as  binding  absolutely  {i.e.,  upon 
itself  also). 

From  the  form  of  the  law  we  now  proceed  to  its  con- 
tent; or,  since  the  content  is  determined  solely  by  the 
object,  to  its  purpose. 

§  12.  The  Purpose  of  the  Law,  —  The  Conditions  of 
Social  Life.  The  two  elements  of  right  in  the  objective 
sense  (law)  that  have  been  developed  so  far,  viz.,  norm 
and  coercion,  are  purely  formal  elements  which  tell 
us  nothing  about  the  content  of  law.  By  means  of  them 
we  know  only  that  society  compels  its  members  to  cer- 
tain things,  but  we  know  not  why  and  for  what  pur- 
pose. It  is  the  external  form  of  law,  remaining  always 
alike  and  capable  of  receiving  the  most  varied  content. 
It  is  through  the  content  that  we  learn  the  purpose 
which  law  serves  in  society,  and  this  forms  the  problem 
of  the  following  exposition. 

An  insoluble  problem,  I  hear  one  exclaim,  for  this 
content  is  ever  changing,  it  is  one  thing  here  and 
another  thing  there,  a  chaos  in  unceasing  flux,  without 
stability,  without  rule.  What  is  forbidden  here  is  al- 
lowed there,  what  is  prescribed  here  is  prohibited  there. 
Belief  and  superstition,  barbarism  and  culture,  ven- 
geance and  love,  cruelty  and  humanity  —  what  else 
shall  I  name?  —  all  these  have  found  a  willing  reception 
in  the  law.  Unresistingly  it  seems  to  yield  to  all  influ- 
ences which  are  powerful  enough  to  make  it  serviceable 
to  them,  without  having  a  fixed  support  of  its  own.  Con- 
tradiction, external  change,  seems  to  constitute  the 
essential  content  of  the  law. 

The  result  would  be  truly  hopeless  if  the  problem 
of  the  law  were  to  realize  truth  absolute.  Under  this  sup- 
position we  could  not  help  admitting  that  the  law  is  con- 
demned to  eternal  error.  Every  successive  period,  as 
it  changes  the  law,  would  break  its  staff  over  the  period 


326  THE   CONCEPT   OE   PURPOSE    [Ch.  vili 

preceding  it,  which  beUeved  it  had  found  absolute 
truth  in  its  legal  principles,  and  would  then  again  in 
Its  turn  be  accused  of  error  by  the  period  succeeding  it. 
Truth  would  always  be  a  few  steps  in  advance  of  the  law 
without  ever  being  overtaken,  like  a  butterfly  chased  by 
a  little  boy  —  no  sooner  does  he  steal  up  close  to  it 
than  it  flies  away  again. 

Science  too  is  condemned  to  everlasting  search.  But 
its  searching  is  not  merely  searching,  it  is  constant  find- 
ing. What  science  has  actually  found  remains  forever. 
And  its  search  is  absolutely  free.  In  the  domain  of 
science  there  is  no  authority  which  lends  to  error  the 
force  of  truth,  as  is  the  case  in  law.  The  principles  of 
science  can  always  be  attacked;  those  of  law  have 
positive  validity.  Even  he  who  recognizes  their  errors 
must  submit  to  them. 

He  who  brings  such  charges  against  the  law  has 
himself  to  blame,  for  he  applies  an  improper  standard 
to  the  law,  that  of  truth.  Truth  is  the  aim  of  knowledge, 
not  of  action.  Truth  is  always  one,  and  every  devia- 
tion from  it  is  error ;  the  opposition  of  truth  and  error 
is  absolute.  But  for  action  or,  which  is  the  same  thing, 
for  the  will,  there  is  no  absolute  standard  in  the  sense 
that  only  one  will-content  is  true  and  every  other  false. 
The  standard  is  relative.  The  content  of  the  will  may 
be  different  in  one  condition  from  what  it  is  in  an- 
other, and  yet  be  right  ("richtig"),  i.e.,  appropriate 
to  the  purpose,  in  both. 

The  Tightness  ("Richtigkeit")  of  a  content  of  the 
will  is  determined  by  the  purpose.  Language  charac- 
terizes an  act  as  either  "correct"  ("richtig")  or  "incor- 
rect" ("unrichtig")  in  accordance  with  the  element  of 
"direction"  ("Richtung")  to  a  purpose  which  is  involved 
in  every  act  of  the  will,  i.e.,  the  aim  of  the  will.  Cor- 
rectness is   the  standard   of   practice,   i.e.,  of   conduct; 


§12],       SOCIAL  MECHANICS  — COERCION        327 

truth  is  the  standard  of  theory,  i.  e.,  of  knowledge.  Cor- 
rectness denotes  the  agreement  of  the  will  with  that 
which  should  be;  truth,  the  agreement  of  the  idea  with 
that  which  is.  When  a  physician  prescribes  a  wrong 
medicine  we  do  not  say  that  he  chose  an  untrue  medi- 
cine but  an  improper  ("unrichtig")  one.  Only  where 
the  finding  of  the  truth  is  thought  of  as  a  practical  prob- 
lem, that  is  as  something  requiring  investigation,  strug- 
gle, taking  pains,  in  short,  exertion  of  the  will,  do  we  apply 
the  expression  "correct"  ("richtig")  also  to  the  problem 
which  is  concerned  solely  with  truth.  We  say  of  the 
pupil  that  he  calculated  his  example  correctly,  of  the 
physician  that  he  diagnosed  the  condition  of  the  patient 
correctly.  We  are  not  considering  here  the  truth  as 
such,  but  the  subject  who  seeks  it,  and  has  made  its 
discovery  his  aim.  From  the  subjective  standpoint 
we  designate  the  attainment  of  the  end  as  correct. 

The  expression  "correct"  ("richtig")  contains  the 
idea  of  direction,  i.  e.,  of  the  way  one  has  to  follow  in  order 
to  reach  the  end,  viz.,  to  attain  one's  aim.  It  is  the 
same  idea  that  language  employs  so  fruitfully  in  law 
as  we  have  seen  above  (p.  261)  ("Richter"  [judge], 
"Richtsteig"  [foot-path],  "Weg  Rechtens"  [way  of  law, 
legal  proceedings],  "recht"  [right]  —  "reht,"i.  e.,  straight, 
"regere,"  "rex,"  "regula,"  "rectum,"  "regieren,"  "diri- 
gere,"  "directum,"  "diritto,"  "derecho,"  "droit").  All 
these  expressions  are  not  derived  from  the  peculiar 
essence  of  law  as  such,  but  from  that  which  the  law, 
as  prescribing  human  conduct,  has  in  common  with 
all  conduct,  viz.,  the  maintenance  of  the  straight,  right, 
correct  way,  the  direction  to  an  aim  and  a  purpose. 

This  explains  why  we  use  the  expression  "right" 
("recht")  in  a  non-juristic  sense  also  for  correct,  proper. 
So  we  say  of  the  physician  that  he  found  the  right 
means,   i.e.,  that  which  answered  the  purpose.     Nay, 


328  THE   CONCEPT  OF   PURPOSE    [Ch.  viii 

here,  too,  (as  in  the  word  "correct"  ["richtig"])  we  even 
go  a  step  further.  We  use  the  expression  "right"  for 
truth  also,  in  so  far  as  it  stands  in  relation  with  purpose. 
We  say  of  the  pupil  that  he  did  his  problem  "right," 
and  of  a  person  who  makes  a  statement  or  passes  a 
judgment  we  say  that  he  is  "right."  We  call  a  person 
"rec/i/haberisch"  (positive,  dogmatic),  who  defends  his 
views  obstinately.  In  all  these  cases  it  is  a  question  of 
truth,  to  be  sure,  but  of  truth  from  the  point  of  view  of 
a  practical  purpose  (seeking,  finding,  asserting,  defend- 
ing, denying). 

I  return  now  to  the  statement  I  made  above.  The 
standard  of  law  is  not  the  absolute  one  of  truth,  but  the 
relative  one  of  purpose.  Hence  it  follows  that  the 
content  of  law  not  only  viay  but  must  be  infinitely  vari- 
ous. As  the  physician  does  not  prescribe  the  same  medi- 
cine to  all  sick  people,  but  fits  his  prescription  to  the 
condition  of  the  patient,  so  the  law  cannot  always  make 
the  same  regulations,  it  must  likewise  adapt  them  to  the 
conditions  of  the  people,  to  their  degree  of  civilization, 
to  the  needs  of  the  time.  Or,  rather,  this  is  no  mere 
"must,"  but  a  historical  fact  which  happens  always  and 
everywhere  of  necessity.  The  idea  that  law  must 
always  be  the  same  at  bottom  is  no  whit  better  than  that 
medical  treatment  should  be  the  same  for  all  patients. 
A  universal  law  for  all  nations  and  times  stands  on  the 
same  line  with  a  universal  remedy  for  all  sick  people. 
It  is  the  long  sought  for  philosopher's  stone,  for  which 
in  reality  not  philosophers  but  only  the  fools  can  afford 
to  search. 

This  view,  although  false  in  its  innermost  essence, 
and  in  irreconcilable  contradiction  with  history,  because 
it  transfers  to  the  will  what  is  applicable  only  to  knowl- 
edge, has  nevertheless  a  certain  semblance  of  truth  in  it. 
Certain  legal  principles  are  found  among  all  peoples; 


§12]      SOCIAL  MECHANICS  — COERCION        329 

murder  and  robbery  are  everywhere  forbidden;  State 
and  property,  family  and  contract  are  met  everywhere. ^^ 
Consequently,  in  these  cases,  one  may  urge,  we  actually 
have  absolute  truth;  these  are,  you  will  say,  evidently 
absolute  "legal  truths,'^  over  which  history  has  no  power. 
You  might  as  well  call  the  fundamental  arrangements  of 
human  civilization,  viz.,  houses,  streets,  clothing,  use  of 
fire  and  light,  truths.  They  are  possessions  of  experi- 
ence having  reference  to  the  assured  attainment  of  certain 
human  purposes.  Securing  the  public  streets  against 
robbers  is  just  as  much  a  purpose  as  securing  them  against 
floods  by  means  of  dams.  The  thing  done  for  a  purpose 
does  not  lose  its  purposive  character  because  this  quality 
of  it  is  placed  beyond  all  doubt,  and  is  therefore  in  this 
sense  true. 

Now  a  science  which,  like  the  science  of  law,  has  the 
purposive  as  its  object,  may  indeed  separate  all  those 
institutions  which  have  stood  the  test  of  history  in  this 
way  from  the  others  which  can  boast  only  a  limited 
(temporal  or  spatial)  usefulness,  and  combine  them  in 
a  separate  class,  as  the  Romans  did  with  "jus  gentium" 
and  "naturalis  ratio"  in  contradistinction  to  "jus  civile" 
and  "civilis  ratio";  but  it  must  not  forget  that  here  too 
it  has  to  do  not  with  the  true  but  with  the  useful.  How 
little  this  has  been  observed,  I  shall  have  occasion  to 
show  in  the  second  part  of  this  work.  The  "legal," 
which  is  regarded  in  the  science  of  law  as  the  properly 
true  because  it  always  remains  in  the  law,  and  which  is 
contrasted  with  the  "useful"   ("zweckmassig")  as  the 

^Theconcept  of  the  Roman  "jus  gentium."  "Quod  vero  naturalis 
ratio  inter  omnes  homines  constituit,  id  apud  omnes  peraeque  cus- 
toditur  vocaturque  jus  gentium,  quasi  quo  jure  omnes  gentes  utun- 
tur,"  D.  1.  1.  9.  "Ex  hoc  jure  gentium  introducta  bella,  discretae 
gentes,  regna  condita,  dominia  distincta,  agris  termini  positi,  sedi- 
ficia  coUocata,  commercium,  emptiones  venditiones,  locationes  con- 
ductiones,  obligationes  instituta;,"  5  ibid. 


330  THE   CONCEPT   OF   PURPOSE    [Ch.  ViH 

temporary  and  evanescent,  will  be  found  there  to  be  a 
species  of  the  latter.  It  will  appear  as  the  part  which 
is  precipitated  and  condensed  in  a  fixed  form  in  contrast 
to  that  which  is  still  fluid  and  movable.  It  is  the  useful 
which  has  stood  the  test  of  many  thousands  of  years; 
the  lowest  stratum  lying  deep  down  at  the  bottom,  which 
bears  all  the  rest,  and  is  therefore  fully  secure  in  its  posi- 
tion. But  the  process  of  formation  of  this  deepest 
layer  was  no  different  from  that  of  the  more  recent. 
It  is  nothing  else  than  the  useful,  stored  up,  tested  by 
experience  and  placed  beyond  all  doubt. 

Everything  found  on  the  ground  of  the  law  was  called 
into  life  by  a  purpose,  and  exists  to  realize  some  purpose. 
The  entire  law  is  simply  one  creation  of  purpose,  except 
that  most  of  the  particular  creative  acts  reach  back  into 
such  a  distant  past  that  humanity  has  lost  remembrance 
of  them.  It  is  a  matter  of  science,  in  the  history  of  the 
formation  of  law  as  well  as  in  the  formation  of  the  earth's 
crust,  to  reconstruct  the  actual  processes,  and  the 
means  are  found  in  the  idea  of  purpose.  Nowhere  is 
purpose  so  certain  of  discovery  as  in  the  domain  of  law  for 
him  who  is  not  afraid  to  investigate  and  reflect.  To 
look  for  it  is  the  highest  problem  of  jurisprudence,  whether 
in  the  dogma  of  law  or  its  history. 

Now  what  is  the  purpose  of  law?  To  the  question, 
what  is  the  purpose  of  animal  activity,  I  gave  the  answer 
above  (p.  5),  the  realization  of  the  conditions  of  his 
existence.  I  now  make  use  of  that  thought  when  I 
define  law  in  reference  to  its  content  as  the  form  of  the 
security  of  the  conditions  of  social  life,  procured  by  the 
power  of  the  State. 

The  justification  of  this  definition  requires  an  under- 
standing of  the  concept  "conditions  of  life,"  here  laid 
down  as  a  basis.  It  is  a  relative  concept  and  is  deter- 
mined   by    the    requirements    of    life.     WTiat    are    the 


§12]      SOCIAL  MECHANICS— COERCION        331 

requirements  of  life?  If  life  means  mere  physical  exist- 
ence, the  concept  is  limited  to  the  bare  necessities  of  life, 
food,  drink,  clothing,  shelter.  Even  here  it  retains  its 
relative  character,  for  it  is  determined  quite  differently 
in  accordance  with  the  individual  needs.  One  needs 
more  than,  and  different  things  from,  another. 

But  life  means  more  than  physical  existence.  Even 
the  poorest  and  the  lowest  demands  more  of  life  than 
its  mere  preservation.  He  wants  well-being,  not  merely 
existence,  and  no  matter  how  differently  he  may  think 
of  it — •  for  this  larger  life  begins  with  one  person  where  it 
ceases  with  another  —  the  idea  of  it  which  he  carries  in 
his  mind,  his  ideal  picture  of  existence  constitutes  for 
him  the  standard  by  which  he  measures  the  value  of  his 
actual  life;  and  the  realization  of  this  standard  forms 
the  aim  of  his  whole  life,  and  works  the  lever  of  his  will. 

The  subjective  requirements  to  which  life  is  bound 
in  this  wider  sense  I  call  conditions  of  life.  I  understand 
by  this  term,  therefore,  not  merely  the  conditions  of 
physical  existence,  but  all  those  goods  and  pleasures 
which  in  the  judgment  of  the  subject  give  life  its  true 
value.  Honor  is  not  a  condition  of  physical  life,  and 
yet  what  is  life  for  a  man  of  honor  without  it?  Where 
the  two  come  in  conflict  he  sacrifices  his  life  to  save  his 
honor,  as.  the  best  proof  that  life  without  honor  is  worth- 
less for  him.  Freedom  and  nationality  are  not  condi- 
tions of  physical  existence,  but  no  freedom-loving  people 
ever  hesitated  to  go  to  death  for  them.  The  suicide 
lays  hand^  on  himself  when  life  has  lost  its  value  for 
him,  although  perhaps  he  is  not  at  all  in  want  of  its 
superficial  requirements.  In  short,  the  goods  and  en- 
joyments by  which  a  man  feels  his  life  conditioned 
are  not  merely  sensuous  and  material,  but  also  immate- 
rial and  ideal.  They  embrace  everything  that  forms 
the  aim  of  human  striving  and  struggling:   honor,  love, 


332  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

activity,  education,  religion,  art,  science.  The  question 
of  the  conditions  of  Hfe  of  the  individual  as  well  as  of 
society  is  a  question  of  the  national  and  individual 
education. 

In  laying  down  this  concept  of  the  conditions  of 
life  at  the  basis  of  my  above  definition  of  law,  I  intend 
in  the  following  to  prove  two  things:  first,  that  it  is  a 
correct  concept,  and  secondly,  that  it  is  scientifically 
valuable  and  friiitfid. 

The  correctness  of  the  concept  will  be  proved  by  the 
fact  that  all  legal  principles,  no  matter  of  what  kind  and 
where  found,  can  be  reduced  to  it.  Its  value  will  be 
shown  by  the  circumstance  that  our  insight  into  the 
law  is  advanced  by  it.  A  point  of  view  which  is  cor- 
rect and  nothing  more  is  only  a  vessel,  into  which  you 
put  an  object  to  take  it  out  again.  The  object  itself 
remains  as  it  was,  without  its  knowledge  being  "ad- 
vanced thereby.  A  point  of  view  is  of  scientific  value 
only  when  it  proves  to  be  productive,  i.  e.,  when  it 
advances  the  knowledge  of  the  object,  when  it  dis- 
closes sides  of  it  which  were  formerly  overlooked.  Let 
us  try  whether  our  point  of  view  will  stand  the  test 
in  both  directions. 

I  expect  some  objections  to  its  correctness.  If  the 
law  has  as  its  object  the  conditions  of  social  life,  how 
can  it  contradict  itself  to  such  an  extent  as  to  forbid 
in  one  place  what  it  allows  or  commands  in  another? 
Which  suggests  that  a  point  capable  of  such  various 
treatment  cannot  belong  to  the  conditions  of  social  life, 
and  is  simply  incidental,  to  be  used  as  society's  pleasure 
dictates. 

The  objection  overlooks  the  relativity  of  purpose.  As 
the  physician  does  not  contradict  himself  when  he  pre- 
scribes today  what  he  forbade  yesterday,  in  accordance 
with  a  change  in  the  condition  of  the  patient,  so  neither 


§12]      SOCIAL  MECHANICS  — COERCION        333 

does  the  legislator.  Conditions  change  in  society  as 
well  as  in  the  individual;  what  may  be  dispensed  with 
here  is  necessary  there;  what  is  useful  in  one  place  is 
injurious  in  another. 

In  order  to  make  clear  the  extraordinary  contrast 
in  the  attitude  of  legislation  to  one  and  the  same  ques- 
tion, resulting  from  the  relativity  above  mentioned,  I 
shall  select  the  two  following  examples.  The  first  con- 
cerns the  question  of  instruction.  Our  present  State 
has  made  elementary  instruction  obligatory.  Formerly 
it  was  left  to  the  pleasure  and  inclination  of  the  indi- 
vidual, except  that  the  State  took  care  of  institutions 
in  which  any  one  could  acquire  an  elementary  educa- 
tion. In  a  still  earlier  period  not  even  this  was  done. 
In  some  of  the  slave  States  of  North  America,  before 
the  Civil  War,  it  was  forbidden  on  pain  of  death  to  teach 
negroes  to  read  and  write.  Here  we  have  an  attitude 
of  the  State  to  one  and  the  same  question  varying  in 
four  different  ways;  securing  the  purpose  in  form  of 
compulsion;  furthering  the  same  by  political  means, 
but  without  compulsion;  complete  indifference  of  the 
State,  and  lastly,  prohibition  to  pursue  the  same  by 
certain  classes  of  society  on  pain  of  death.  If  we  apply 
our  idea  of  conditions  of  life  to  this  matter,  we  shall 
find  that  the  last  form  of  this  subject,  from  the  stand- 
point of  the  American  slave  States,  signifies  that  the 
slave  State  is  incompatible  with  the  education  of  the 
slaves.  If  the  slave  can  read  and  write,  he  will  cease 
to  be  a  working  animal,  he  will  become  a  human  being 
and  claim  his  human  rights,  and  thereby  threaten  the 
social  order  built  upon  the  institution  of  slavery.  Where 
life  depends  upon  darkness,  the  introduction  of  light 
is  a  capital  crime.  In  antiquity  this  danger  was  not 
feared  because  the  belief  in  the  lawfulness  of  slavery 
was  not  yet  shattered.     The  first  form  of  the  subject, 


334  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

indifference  of  the  State  to  instruction,  signified  from 
the  standpoint  of  that  time  that  school  education  does 
not  belong  to  the  conditions  of  social  life;  the  second 
form,  support  by  the  State,  means  that  it  is  desirable; 
the  third,  compulsory  education,  that  it  is  indispen- 
sable. Which  of  these  conceptions  is  the  true  one?  All 
four  were  true,  each  one  in  its  time  and  place. 

The  second  example  concerns  the  attitude  of  legis- 
lation to  religion.  WTien  Christianity  arose,  the  heathen 
State  raged  against  it  with  fire  and  sword.  Why? 
Because  it  believed  that  it  could  not  co-exist  with  it. 
It  persecuted  it  because  it  saw  in  the  latter  a  danger 
to  one  of  its  conditions  of  life,  viz.,  the  State  religion. 
A  few  centuries  later  the  same  State,  which  formerly 
prohibited  the  Christian  confession  on  pain  of  death, 
imposed  it  by  force  with  the  most  cruel  means.  The 
view  that  it  could  not  co-exist  witk  it  was  now  trans- 
formed into  the  view  that  it  could  not  exist  without  it. 
Formerly  it  was,  "Woe  to  the  Christians,"  now  it  was, 
"Woe  to  the  heretics."  The  prisons  and  the  funeral 
piles  remained;  only  the  victims  changed  who  were 
throwTi  in.  A  thousand  years  later  the  government 
arrived  at  the  view,  as  a  result  of  severe  and  bloody 
battles,  that  the  existence  of  society  is  not  merely  com- 
patible with  freedom  of  belief,  but  is  impossible  with- 
out it.  Which  of  these  conceptions  was  the  true  one? 
Again  all  three,  each  one  for  its  time. 

The  second  objection  which  I  must  expect  is  this. 
Far  from  being  true  that  law  always  serves  the  condi- 
tions of  social  life,  the  opposite  is  the  fact;  namely, 
that  it  is  frequently  in  diametrical  opposition  to  the  true 
interests  of  society. 

I  admit  this  perfectly.  But  if  I  am  allowed  once  more 
to  use  the  comparison  of  the  physician,  I  answer  that  the 
same  thing  often  applies  objectively  to  his  prescriptions 


§12]      SOCIAL  MECHANICS— COERCION        335 

also,  and  yet  this  does  not  overthrow  the  fact  that 
subjectively  their  purpose  is  to  advance  life.  The  physi- 
cian may  make  a  mistake  in  the  choice  of  his  means. 
So  may  the  legislator.  He  may  be  influenced  by  pre- 
judices of  all  kinds,  but  this  circumstance  does  not 
remove  the  fact  that  he  believes  he  is  securing  or  ad- 
vancing the  existence  of  society  thereby.  In  Rome  to 
draw  away  the  seed  of  another's  land  to  one's  own  field 
by  means  of  incantations  ("segetem  pellicere"),  and  to 
lay  a  charm  upon  another's  fruit  ("fruges  excantare") 
was  forbidden  in  the  XII  Tables  on  pain  of  death;. just 
like  robbing  a  field  by  night  and  removing  the  bound- 
ary. "Why?  The  Roman  peasant  believed  he  could  not 
maintain  himself  against  these  imagined  or  real  dangers 
to  the  security  of  his  property.  Security  of  real  prop- 
erty and  agriculture  was  considered  by  him  as  a  con- 
dition of  social  life.  Therefore  a  capital  penalty  was 
demanded  for  every  one  who  laid  hands  on  it. 

It  was  the  same  case  in  the  middle  ages  with  witches 
and  sorcerers.  All  society  trembled  before  the  devil, 
who  was  in  a  compact  with  them;  they  seemed  more 
dangerous  and  uncanny  than  robbers  and  murderers. 
For  the  Church  there  was,  in  addition  to  the  idea  of 
their  common  danger,  the  religious  motive  that  the 
kingdom  of  Heaven  must  be  protected  against  the  works 
of  the  devil.  Society,  as  well  as  the  Church,  was  firmly 
convinced  that  witches  and  sorcererls  threatened  it  in 
the  foundations  of  its  existence.  We  may  find  fault 
with  them  for  having  been  able  to  give  themselves 
up  to  such  a  belief,  but  the  matter  is  not  changed 
thereby.  The  motive  which  guided  them  subjectively 
was  the  security  of  the  conditions  of  social  life,  and 
the  point  of  view  suggested  by  me  is  meant  in  this  sub- 
jective sense  only.  It  is  not  meant  to  signify  that  a 
given  thing  is  sm  objective  condition  of  life,  but  that 
it  is  regarded  subjectively  as  such. 


330  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

But  even  in  this  subjective  sense  it  does  not  seem  to 
apply  to  society  absolutely.  Experience  shows  that 
the  government  does  not  by  any  means  always  serve 
the  interests  of  the  whole  population,  but  frequently 
onh'  those  of  a  single  powerful  class.  And  consequently 
legislation  also  does  not  make  the  law  to  correspond 
uniformly  to  the  interests  of  society,  but,  above  all,  to 
those  of  a  privileged  class.  The  concept  of  the  con- 
ditions of  social  life  seems  in  this  case,  where  the  in- 
terests of  a  single  class  are  put  in  place  of  the  interest 
of  society,  to  disappear  entirely.  I  shall  lay  this  objec- 
tion aside  for  the  present  to  answer  it  later  (§  14). 

The  last  objection  which  I  think  I  must  fear  is  the 
following.  The  definition  which  has  been  laid  down  for 
the  law  as  a  whole  must  apply  to  every  constituent 
part  of  it,  to  every  statute,  to  every  ordinance.  A 
stamp  act,  a  law  concerning  the  tax  on  brandy,  regu- 
lations concerning  the  declarations  of  duty,  concerning 
the  measures  of  controlling  the  tax  in  distilleries,  brew- 
eries, etc.,  concerning  the  stamping  and  naming  of  new 
coins  —  all  these  must  be  conditions  of  social  life. 

This  objection  is  just  as  if  one  intended  to  refute  the 
statement  of  the  necessity  of  nourishment  for  the  pre- 
servation of  human  life  by  proving  that  the  special 
form  in  which  nourishment  is  taken  by  a  particular  in- 
dividual is  not  at  all  required  for  that  purpose.  The 
answer  to  this  must  be,  the  fact  is  necessary,  the  manner 
is  free.  That  a  particular  individual  should  take  this 
particular  food  and  this  particular  drink,  in  this  parti- 
cular quantity,  at  this  particular  time,  is  a  matter  of 
individual  choice ;  but  that  he  should  take  food  and  drink 
generally  is  a  peremptory  demand  of  nature.  That 
the  State  should  just  select  a  tax  on  stamps  and  brandy 
and  the  monopoly  of  tobacco  and  salt,  to  procure  the 
necessary  revenue,  is  a  matter  of  free  choice,  but  that  it 


§121      SOCIAL  MECHANICS— COERCION        337 

should  procure  these  means  generally  is  an  absolute 
requirement  of  its  existence,  and  consequently  a  con- 
dition of  social  life.  If  it  has  once  decided  on  a  definite 
form  of  taxes  then  all  the  measures  it  takes  to  secure 
their  payment  or  to  facilitate  their  collection  are  only 
the  necessary  consequences  of  such  choice  once  made. 
Whoever  desires  the  purpose  must  also  desire  the  proper 
means.  I  can  think  of  no  legal  ordinance,  no  matter 
how  detailed  and  petty,  in  which  I  would  not  under- 
take to  show  its  connection  with  my  point  of  view.  Coins, 
measure,  weight,  construction  and  maintenance  of  pub- 
lic roads,  cleaning  the  sewers,  keeping  fire  buckets,  taxes 
of  all  kinds,  reporting  servants  and  strangers  in  hotels 
to  the  police,  and  even  the  most  annoying  police  regu- 
lations of  former  times,  as  for  example,  the  \iseing  of 
passports  —  all  these  are  reduced,  according  to  their 
purpose,  to  the  security  of  the  conditions  of  social  life, 
no  matter  how  faulty  the  choice  of  the  means  might  be. 

If  we  consider  all  the  requirements  upon  which  the 
existence  of  society  depends,  they  can  be  divided,  in 
reference  to  the  attitude  of  the  law  toward  them,  into 
three  classes,  which  I  shall  designate  as  the  extra-legal, 
the  mixed-legal  and  the  purely  legal. 

The  first  division  belongs  to  nature,  whether  she  offers 
them  to  man  freely  and  without  trouble,  or  whether  he 
has  to  win  them  from  her  by  means  of  toil.  The  law 
has  no  share  in  them.  The  law  has  power  only  over 
man,  not  over  nature.  They  are  excluded  therefore 
from  the  following  discussion,  as  extra-legal  conditions 
of  life. 

The  second  division  belongs  exclusively  to  man,  and 
for  him  also  there  is  the  difference  between  those  needs 
which  are  offered  freely  and  those  which  must  be  gained 
by  force.  The  individual  acts  voluntarily  in  the  serv- 
ice of    society  where    his  interest    coincides  with  that 


338  THE   CONCEPT   OF   PURPOSE    [Cii.  Vlli 

of  the  latter,  and  this  is  the  case  on  the  whole  in  four 
fundamental  conditions  of  social  life,  viz.,  preservation 
of  life,  reproduction  of  the  same,  labor,  and  trade.  For 
there  are  three  powerful  motives  at  work  in  man  for 
these  purposes,  viz.,  the  instinct  of  self-preservation,  the 
sexual  impulse  and  the  instinct  of  acquisition.  Society 
need  feel  no  anxiety  in  reference  to  these,  and  may  find 
consolation  in  the  words  of  Schiller  (in  his  "Die  Welt- 
weisen") : 

"Until  one  day  philosophy 

The  structure  of  the  world  will  hold 

It  is  held  now  in  motion 

By  hunger  and  by  Love." 
The  instinct  of  self-preservation,  the  sexual  instinct 
and  the  instinct  of  acquisition  are  the  three  powerful 
allies  of  society  which  enable  it  to  dispense  with  force 
in  reference  to  the  services  which  they  render  it. 

Exceptionally,  however,  these  three  instincts  may 
refuse  their  service.  In  regard  to  the  first,  this  is  the 
case  in  the  suicide ;  in  regard  to  the  second  in  the  celibate ; 
in  regard  to  the  third  in  the  beggar  and  the  vagabond. 
Suicides,  celibates,  beggars,  offend  against  the  principles 
of  human  society  no  less  than  murderers,  robbers,  thieves. 
To  be  convinced  of  it  one  need  only  refer  their  attitude 
toward  society  to  the  Kantian  generalization  of  the 
maxim  of  individual  conduct.  If  their  conduct  became 
universal,  it  would  be  all  over  with  society. 

This  is  true  first  in  reference  to  preservation  of  individ- 
ual life,  secured  by  the  instinct  of  self-preservation. 
If  it  were  thinkable  that  the  pessimistic  view  of  life  of  a 
recent  philosopher,'^*'  "that  from  the  standpoint  of  the  ego 
or  the  individual,  the  negation  of  the  will  or  resignation 
of  the  world  and  renunciation  of  life  is  the  only  rational 

**£.  von  Hartmann,  "Philosophic  des  Unbewussten,"  (BerHn 
1869),  pp.  613,  626. 


§12]      SOCIAL  MECHANICS  — COERCION        339 

procedure"  —  could  become  general;  if  we  could  imag- 
ine that  the  "longing  for  absolute  painlessness,  for  noth- 
ingness—  Nirvana," — should  descend  from  the  rigid, 
icy  region  of  a  philosopher  despairing  of  the  solution 
of  the  world-problem,  into  the  valleys  and  the  plains, 
where  fresh  life  is  pulsating,  and  where  the  masses, 
even  though  unceasingly  struggling  with  life,  do  yet 
take  joy  in  it,  —  if  it  were  thinkable  that  a  time  would 
come,  "when  not  this  or  that  particular  individual, 
as  before,  but  humanity  would  long  for  nothingness,  for 
annihilation,"  this  would  constitute  a  danger  to  society 
equalled  by  none  of  all  those  others  which  it  has  met 
with  in  its  course.  For  the  present,  society  is  fortunately 
still  in  a  position  to  be  able  to  leave  the  care  for  the 
preservation  of  life  to  the  instinct  of  self-preservation. 
The  danger  with  which  suicide  threatens  its  existence 
is  so  vanishingly  small  that  it  need  feel  no  apprehension 
on  this  score. 

The  case  is  somewhat  different  with  reproduction  of 
life,  secured  by  the  sexual  instinct.  The  sexual  instinct, 
to  which  nature  has  handed  over  the  care  of  this  matter, 
is  not  sufficient  to  secure  it  by  itself.  Man  can  deceive 
nature  in  relerence  to  this  matter.  He  can  limit  the 
number  of  births,  the  mother  can  destroy  the  germ  of 
life,  kill  the  new-born  babe,  the  parents  can  expose  it 
or  castrate  it.  Here  there  is  a  danger  threatening  the 
State,  which  it  is  obliged  to  meet,  and  the  penal  regula- 
tions against  abortion,  child  murder,  exposure  and 
mutilation  of  children,  which  are  found  in  the  criminal 
laws  of  all  civilized  nations,  show  that  the  State  is  well 
aware  of  the  danger  which  threatens  it.  It  is  not  merely 
regard  for  the  child,  whose  prospects  for  life  are  thus 
taken  away,  that  has  dictated  this  measure.  This  is 
the  religious  standpoint,  which  I  do  not  deny,  but  which 
it  is  not  at  all  necessary  to  introduce  in  order  to  justify 
the   regulations.     The   wholly    profane    standpoint    of 


340  THE   CONCEPT   OF   PURPOSE    [Cn.  \iii 

the  conditions  of  social  life  is  quite  sufficient  to  explain 
them.  Society  cannot  exist  if  the  new  generation  is 
threatened. 

Our  modem  law  is  content  with  negative  regulations 
against  endangering  the  new  generation.  But  examples 
are  not  wanting  in  which  legislation  has  tried  to  further 
it  positively.  This  was  the  object  of  the  stringent  "Lex 
Julia"  and  "Papia  Poppsea"  of  Augustus,  which  was 
called  forth  by  the  decrease  of  the  free  population  during 
the  Civil  Wars  and  the  corruption  of  morals  that  became 
prevalent  in  Rome.  This  law  endeavored  to  tax  celibacy 
and  childlessness  by  incapacitating  the  celibate  and  the 
childless,  wholly  or  partially,  from  testamentary  inheri- 
tance, and  by  otherwise  reducing  them  to  an  inferior 
position  in  favor  of  married  persons  blessed  with  chil- 
dren." And  Louis  XIV  went  so  far  in  the  interest  of 
more  rapidly  increasing  the  population  in  Canada  that 
he  even  compelled  single  persons  to  marry  by  force. ^^ 

From  the  same  Rome  which  in  the  time  of  Augustus 
carried  on  a  campaign  against  celibacy  and  childlessness, 
went  forth  in  later  times  the  command  of  the  Church, 
which  forbade  its  servants  to  marry.     I  do  not  mean 

*^The  comparison  which  Tacitus,  "Germania,"  ch.  19,  institutes 
between  Roman  and  German  custom. will  serve  to  explain  the  meas- 
ure of  Augustus:  "Numerum  liberorum  finire  aut  quemquam  ex 
agnatis  necare  flagitium  habetur,  plusque  ibi  boni  mores  valent 
quam  alibi  bonae  leges." 

**  According  to  Parkman,  "France  and  England  in  North 
America,"  he  laid  down  the  marriageable  age  for  the  male  sex  at 
18  to  19,  for  the  female  at  14  to  15.  Every  father,  who  did  not 
marry  his  children  at  the  respective  ages  of  20  or  16  years  at  the  latest, 
W'as  punished.  When  the  ships  came  with  female  volunteers  from 
France,  all  young  men  had  to  provide  themselves  with  wives  within 
fourteen  days.  Whoever  evaded  this  duty  was  deprived  of  the  few 
joys  and  advantages  of  Canadian  life.  He  was  not  allowed  to  hunt, 
to  fish,  to  go  in  the  woods,  to  trade  with  the  Indians,  nay,  they  went 
so  far  as  to  provide  him  with  degrading  marks. 


§12].      SOCIAL  MECHANICS— COERCION        341 

to  ignore  in  this  matter  the  weight  of  the  ecclesiastical 
policy,  which  caused  the  Church  to  introduce  celibacy. 
And  I  am  also  fully  sensible  of  the  ethical  point  of  view 
that  renunciation  stands  higher  than  indulgence.  But 
it  is  one  thing  when  a  person,  for  reasons  which  we  cannot 
help  acknowledging  or  perhaps  even  admiring,  volun- 
tarily renounces  marriage,  and  it  is  another  thing  when 
his  continence  is  forced  by  law.  I  leave  the  question 
unanswered  whether  it  can  be  practically  carried  out 
as  is  conceived,  and  how  dearly  the  individual  must  pay 
for  it.  I  am  not  the  spokesman  of  the  Catholic  priest, 
demanding  for  him  in  his  name  the  right  of  a  human 
being,  but  I  place  myself  solely  upon  the  standpoint  of 
society.  And  from  this  point  of  view  the  judgment  can- 
not, in  my  opinion,  be  otherwise  than  that  celibacy  is 
in  its  principle  an  anti-social  institution.  It  may  in  its 
limitation  to  a  particular  class  of  persons  be  practically 
tolerable  for  society,  but  we  need  only  think  it  as  general 
to  be  convinced  that  society  is  incompatible  with  it. 
In  Russia  there  is  a  sect  of  Old  Russians  who  try  to 
secure  sexual  continence  not  merely  morally  by  means 
of  vows,  but  mechanically  by  means  of  castration.  They 
deserve  the  credit  of  consistency,  from  which  the  Roman 
Catholic  Church  shrank;  but  the  Russian  government 
deserves  the  praise  of  not  having  been  deterred  from 
persecuting  them  with  all  the  means  at  its  disposal  despite 
the  shield  of  religious  conviction  with  which  the  sect 
covers  itself. 

The  third  of  the  fundamental  conditions  above  men- 
tioned is  labor.  The  hours  of  society  would  be  numbered 
if  all  workmen  (taking  the  expression  in  the  widest  sense, 
in  which  it  embraces  all  persons  active  for  the  purposes  of 
society)  should  conclude  one  day  to  put  their  hands  in 
their  pockets.  Provision  is  made  here  too  that  this 
should  not  occur.     The  doing  of  work  needs  no  more 


342  THE   CONCEPT   OK   PURPOSE    [Cii.  Vlii 

securing  by  legal  prescription  than  self-preservation 
and  reproduction;  it  is  guaranteed  by  the  needs  of  the 
individual  and  his  instinct  of  acquisition.  But  in 
a  limited  way  the  government  may  have  occasion  to 
interfere  in  this  matter;  permanently  against  begging 
and  vagabondage,  temporarily  against  the  conspired 
suspension  of  work  on  the  part  of  whole  classes  of  labor- 
ers for  the  purpose  of  compelling  higher  wages  (strikes). 
From  the  abstract  standpoint  of  personal  individual 
freedom  interference  would  not  be  justified  in  any  of  the 
three  cases.  That  it  does  take  place  as  a  matter  of  fact 
shows  that  this  point  of  view  cannot  practically  be  carried 
out.  The  appeal  of  the  individual  to  his  freedom  is  met 
by  the  command  of  social  self-preservation. 

The  same  thing  applies  to  business  exchange  as  to 
work.  It  constitutes  a  condition  of  social  life,  but  society 
has  no  need  of  commanding  it  by  law.  His  own  interest 
is  sufificient  to  determine  the  farmer  to  bring  his  com 
and  cattle  to  market,  and  the  merchant  to  sell  his  wares. 
But  the  possibility  of  taking  advantage  of  necessity  for 
the  purpose  of  raising  prices  offers  to  legislation  an 
opportunity  of  interference  here  also.  I  have  alread\' 
expressed  myself  before  (p.  103)  concerning  the  necessity 
and  justification  thereof.  The  most  dangerous  case  of 
this  kind  in  former  times  was  usurious  trade  in  com, 
which  legislation  prohibited  with  heavy  punishment. 
Telegraphs  and  railways  have  made  it  possible  to  strike 
out  this  species  of  offence  from  the  criminal  law  books. 
This  shows  clearly  that  the  leading  motive  of  the  law  book 
is  not  the  unethical  character  of  the  subjective  purpose, 
but  the  objective  danger  to  the  community  arising  from 
the  act. 

The  four  fundamental  requirements  of  the  existence 
of  society  just  considered,  viz.,  self-preservation,  repro- 
duction,  work   and   trade,    I    designate   as    mixed-legaJ 


§12]       SOCIAL  MECHANICS— COERCION        343 

conditions,  because  their  security  does  not  depend  upon 
the  law  in  the  first  instance,  but  upon  nature,  upon  the 
power  of  the  three  natural  impulses  above  named.  The 
law  only  comes  to  assist  them  in  exceptional  cases  when 
they  fail.  In  contradistinction  to  these  are  the  purely 
legal.  These  are  those  for  the  security  of  which  society 
is  beholden  exclusively  to  the  law.  We  need  only 
think  of  the  requirements  of  these  two  classes  in  the 
form  of  a  command,  to  be  convinced  of  the  fundamen- 
tal distinction  of  the  two.  Legislation  has  no  need  of 
issuing  such  legal  prescriptions  as,  eat  and  drink,  save 
your  life  from  danger,  reproduce  your  species,  work, 
sell,  but  we  meet  everywhere  with  the  commands,  "Thou 
shalt  not  kill,  thou  shalt  not  steal,  thou  shalt  pay  thy 
debts,  thou  shalt  be  obedient  to  the  government,  pay 
taxes  to  the  State,  perform  military  service,"  etc.  To  be 
sure,  in  these  commands  also  the  State  does  not  prescribe 
any  thing  that  is  not  demanded  by  the  true  interest  of 
its  members.  We  have  only  to  think  of  them  as  absent 
to  become  aware  of  this  fact.  No  one  would  be  sure 
of  his  life  or  property  without  them,  it  would  be  the  war 
of  all  against  all.  But  even  if  we  thought  of  society 
as  devoid  of  all  moral  principles,  if  we  thought  of  it  as 
composed  of  nothing  but  egoists  of  the  purest  water, 
or  of  criminals  as  in  a  convict  colony,  or  of  robbers  as 
in  a  robber  band,  egoism  would  immediately  raise  its 
voice,  and  demand  for  the  relation  of  the  comrades 
among  themselves  the  inviolable  observance  of  almost 
the  same  principles  as  the  State  prescribes  in  the  form 
of  law.  And  it  would  punish  their  violation  no  less, 
or  rather  far  more  harshly  and  cruelly  than  does  the- 
State    through    the    criminal    law.®^    As   a   matter   of 

*'  An  interesting  proof  of  this  is  furnished  in  the  cases  of  secret 
criminal  justice  administered  by  comrades  among  the  military  and 
on  warships.     When  the  entire  crew  has  to  suffer  for  the  offence  of  a 


344  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

experience,  popular  justice  is  always  more  cruel  than  State 
justice.  The  former,  when  it  seizes  a  person  stealing 
sheep,  simply  strings  him  up,  the  latter  merely  throws 
him  into  prison  for  a  short  time.  The  organization  of 
the  criminal  law  by  the  State  constitutes  no  less  a  benefit 
for  the  criminal  than  for  society.  Our  present  adminis- 
tration of  the  criminal  law  does  rather  too  much  for 
him  in  this  matter  than  too  little.  But  the  indulgence 
which  it  shows  the  criminal  is  bought  at  the  expense 
of  the  State. 

How  does  it  happen  then  that  egoism  trangresses  the 
law  which  serv^es  its  own  purposes?  The  egoist  would 
not  do  it,  if  he  expected  that  it  would  be  done  by  every 
body,  but  he  counts  upon  its  not  happening.  In  other 
words,  he  wants  the  law  in  so  far  as  it  limits  others  in 
his  interest,  he  does  not  want  it  in  so  far  as  it  limits  him 
in  the  interest  of  others.  He  wants  the  advantageous 
consequences  but  not  the  disadvantageous  ones. 

It  is  the  opposition  of  social  egoism  to  individual.  The 
former  determines  him  to  desire  the  law,  and  when  the 
State  has  not  the  pbwer  to  carry  it  out  he  even  enforces 
it  himself  (lynch  law),  the  latter  determines  him  to 
transgress  it.  The  law  has  social  egoism  as  its  ally,  indi- 
vidual egoism  as  its  opponent.  The  former  pursues 
the  common  interest,  the  latter,  the  individual  interest. 
If  the  tw^o  interests  were  mutually  exclusive,  so  that 
every  one  had  the  choice  of  desiring  either  the  interests 
of  society  or  his  own,  his  choice  would  not  be  doubtful. 

single  person,  who  will  not  give  himself  up,  they  administer  jus- 
tice to  him,  in  case  of  repetition  of  the  offence,  on  their  own  account. 
And  they  do  it  so  effectively  that  there  is  no  fear  of  a  relapse.  In 
barracks  it  is  usually  done  in  a  dark  room,  on  warships  the  execution 
takes  place  during  the  noonday  meal  of  the  officers,  over  the  cannon 
in  steerage.  It  always  happens  so  that  the  subordinate  officers  are 
on  the  quarter  deck,  and  from  the  steerage  there  rises  up  to  them  only 
the  joyful  and  clear  singing  of  the  crew. 


§12]      SOCIAL  MECHANICS— COERCION        345 

But  the  realization  of  the  law  by  the  State,  i.  e.,  the 
legal  order,  enables  him  to  desire  both.  When  he  trans- 
gresses the  law  he  desires  his  own  interest,  otherwise  he 
desires  the  law  in  addition. 

If  all  legal  measures  have  as  their  purpose  securing 
the  conditions  of  social  life,  then  society  is  the  subject  of 
this  purpose.  A  strange  subject,  it  will  be  objected,  a 
mere  abstraction.  The  real  subject  is  man,  the  indi- 
vidual; every  legal  measure  is  ultimately  for  his  benefit. 
Perfectly  correct.  All  legal  measures,  whether  they 
belong  to  private  law,  criminal  law,  or  public  law,  have 
man  as  their  purpose.^*^  But  social  life,  in  joining  man- 
kind into  higher  groups  through  the  community  of  per- 
manent purposes,  extends  thereby  the  forms  of  human 
existence.  To  man  as  a  single  being  considered  by  him- 
self (individual),  it  adds  the  social  being,  —  man  as  a 
member  of  a  higher  unit.  When  we  elevate  the  latter 
(State,  Church,  associations)  instead  of  the  former  as 
subjects  of  the  laws  relating  to  them  (juristic  persons), 
we  do  not  lose  sight  of  the  fact  that  they  only  intercept 
the  advantageous  effects  of  these  laws  to  hand  them  over 
to  the  natural  person,  man.  The  mechanism  by  which 
the  purpose  of  the  law  is  realized  for  man  is  various, 
immediate  and  mediate;  and  the  jurist  in  the  latter  case 
cannot  dispense  with  the  concept  of  a  higher  legal  subject, 
standing  above  the  particular  individual.  How  far  he 
can  proceed  in  the  application  of  this  concept  is  a  ques- 
tion of  technical  jurisprudence  which  does  not  interest 
us  here.^^  For  the  sociologist  this  does  not  come  into 
consideration.     Having  allowed  the  jurist  the  free  use 

™A  Roman  jurist  carries  over  the  idea  of  purpose  in  the  active 
sense  to  nature.  Nature  made  everything  for  the  sake  of  man, 
"Omnesfructusnaturahominum  causa  comparavit,"  D.  22.  1.28  §1. 

"  I  treated  the  question  in  my  "Geist  des  romischen  Rechts," 
III,  1,  p.  356  ff.  (4th  ed.). 


346  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

of  his  concept  of  the  "subject  of  the  law,''  he  may  and 
must  claim  in  his  turn  the  right  to  use  the  concept  of  the 
"subject  of  the  purpose  of  the  law,"  as  his  own  problem 
demands.'^ 

In  this  social-political  sense  I  have  designated  society 
as  the  subject  of  the  purpose  of  the  law,  and  stated  the 
problem  of  the  latter  to  be  the  security  of  the  conditions 
of  social  life.  But  we  may  again  distinguish  within 
society  in  this  widest  sense  special  subjects.  These  are 
first,  the  four  named  above,  viz.,  the  individual,  the 
State,  the  Church,  associations.  All  of  these  are  at  the 
same  time  juristic  subjects  in  the  sense  of  the  jurist,  — 
bearers  of  rights,  persons.  But  they  do  not  exhaust  the 
content  of  the  law.  There  still  remains  a  surplus  of 
legal  measures  which  does  not  relate  to  any  of  these  four 
legal  subjects.  If  we  raise  the  question  of  the  subject 
of  these  extra  laws,  as  we  must  in  all  laws,  nothing 
remains  but  to  name  the  indeterminate  multitude,  the 
masses,  society  in  the  narrower  sense.  We  shall  use  the 
term  social  in  the  sequel  for  these  laws  and  institutions. 

The  whole  law  refers  to  these  five  subjects  as  its  pur- 
pose. They  are  the  personal  centres  of  the  purpose 
of  the  whole  law,  around  which  all  its  regulations  and 
principles  are  grouped.  In  the  relations,  purposes,  and 
problems  of  these  five  subjects  the  whole  life  of  society 
is  represented.  It  is  the  schema  of  the  purpose  of  the 
law  which  is  valid  for  all  times." 

''^  In  reference  to  the  ethical  element  I  shall  do  this  later  (Vol.  II); 
here  I  confine  myself  to  law. 

^^The  Roman  classification  above  mentioned  of  "jus  privatum" 
and  "jus  publicum,"  in  D.  1.1.1  §  2,  which  is  based  upon  the  differ- 
ence of  the  subject  for  whose  purpose  the  law  in  question  is  made, 
embraces  under  the  last  category  ("quod  ad  statum  rei  Romanse 
spectat")  State  and  Church  ("in  sacris,  sacerdotibus  magistratibus 
consistit").  The  systematic  status  of  associations  ("collegia," 
"corpora,"  D.  47.  22)  is  not  precisely  stated.     To  what  extent  the 


§12]      SOCIAL  MECHANICS— COERCION        347 

I  shall  endeavor  in  the  sequel  to  illustrate  and  to  test 
by  means  of  three  fundamental  concepts  the  classification 
of  the  whole  law  as  I  drew  it  up  by  reference  to  the 
subject  of  its  purpose.  I  believe,  however,  that  I  can 
leave  the  Church  and  the  associations  out  of  considera- 
tion, because  what  I  am  going  to  say  about  the  State 
or  the  individual  can  without  difficulty  be  applied  to 
them,  where  there  is  at  all  an  occasion  to  do  so.  I  will 
therefore  limit  my  schema  to  the  three  categories, 
Individual,  State,  Society. 

1.  The  Legal  Relations  of  Things.''*  In  refer- 
ence to  the  economic  functions  of  things  as  they  are 
determined  by  human  need,  the  Roman  law  distinguishes 
two  forms,  which  we  may  designate  as  primary  and 
secondary  functions.  The  normal  form  of  the  first  is 
property,  of  the  second  the  "jus  in  re." 

But  in  one  direction  the  first  relation  goes  beyond  the 
form  of  property,  namely  in  reference  to  "res  publicae." 
The  primary  subject  of  these  is  doubtless  not  the  State, 
the  city  or  the  community  as  a  juristic  person,  but  the 
indefinite  multitude  of  individuals  who  make  use  of 
them,  viz.,  the  masses,  the  people.  The  subject  in  this 
case  is  one  to  which  the  concept  of  property  as  the 
Roman  jurists  conceive  it,  namely  as  the  exclusive  right 
of  a  definite  (physical  or  juristic)  person,  does  not  apply. 
They  bring  it  instead  under  the  category  of  public  use 
("usus  publicus").  It  is  not  merely  an  actual  function, 
but  is  protected  by  law  (by  "actiones  populares").     It 

Romans  were  familiar  with  the  concept  of  society  as  here  laid  down 
will  be  shown  later. 

''*  I  had  worked  over  completely  the  following  part  for  the  second 
edition,  but  the  new  exposition  assumed  such  proportions  that  I 
thought  it  proper  to  publish  it  independently  in  another  place.  The 
following  presentation  contains  a  short  extract  from  it  in  which  I 
limit  myself  to  suggestions. 


348  THE   CONCEPT  OF   PURPOSE    [Ch.  Viii 

is  a  peculiar  legal  function  of  the  thing.     I  call  it  public 
right.''^ 

According  to  our  division  in  three  subjects,  we  have 
three  forms  of  the  functions  of  a  thing  as  determined 
by  human  need. 

(a)  Individual  property  (subject:  physical  person). 

(b)  State  property  (subject:  the  State,  the  Church 
or  corporation,  respectively). 

(c)  Public  right  (subject:  society  in  the  narrower 
sense  ).''^ 

In  the  non- juristic  sense  in  which  the  term  property 
is  so  frequently  used  in  life,  and  in  which  it  is  applied 
also  by  political  economists,  public  right  might  be  called 
social  or  popular  property.  The  same  relation  is  found 
also  in  the  Church  and  in  associations  in  reference  to 
those  things  which  are  assigned  to  the  general  use  of 
its  members  ("usus  publicus"),  such  as  the  use  of  the 
church  building,  of  the  union  local,  of  the  periodicals 
kept  there,  etc.,  in  contrast  to  their  property  ("bona," 
"patrimonium  universitatis"). 

All  the  three  forms  named  have  as  their  object  the 
security  of  the  conditions  of  social  life  in  the  wider  sense. 
None  of  them  can  be  dispensed  with.  Not  individual 
property — for  we  have  showTi  above  (p.  47,  et  seq.) 
how  physical  self-assertion  produces  economic,  in  other 

'*  Proved  and  expounded  in  detail  in  my  "Geist  des  romischen 
Rechts,"  III,  1,  p.  360  (4th  ed.). 

"  The  Romans  place  the  above  drstinction  in  the  thing,  and  dis- 
tinguish (a)  "Res  singulorum,"  "propriae,"  "familiares,"  "res,  quae 
in  bonis  alicujus  3unt,"  "res  sua,"  "suum,"  "privatum,"  etc.  The 
expression  "res  privatae,"  which  has  become  very  common  today, 
is  found  only  inGaius  so  far  as  I  know  in  1.  8.  1.  pr.  (b)  "Pecunia," 
"patrimonium  populi,"  "res  fisci,"  "fiscales."  (c)  "Res  publicae," 
"res,  quae  in  usu  pubHco  habentur,"  "publicis  usibus  in  perpetuum 
relictae,"  "publico  usui  destinatae,"  "communia  civitatum,"  "res 
universitatis." 


J 12]      SOCIAL  MECHANICS  — COERCION        349 

words,  private  property,  as  a  necessary  consequence. 
Not  State  property  —  for  the  State  must  always  have  a 
supply  of  economic  means  ready  to  use  for  its  purposes, 
and  this  is  exactly  what  constitutes  the  function  of 
property.  Nor  can  public  right  be  dispensed  with — 
for  without  the  community  of  public  roads,  places, 
rivers,  human  intercourse  is  unthinkable.  The  exclusive 
institution  of  private  property  would  make  all  spatial 
communication  impossible. 

The  security  of  the  last  function  is  today  taken  care 
of  by  the  police.     The  Romans  were  intelligent  enough 
to  allow  the  public  itself  the  right  to  represent  its  interests 
by  giving  every  one  the  power  to  complain  ("actio  popu- 
laris") against  the  person  who  encroaches  upon  the  use 
of  the  "res  publicae"  by  means  of  some  illegal  measures." 
The  destination  of  a  thing  for  the  use  of  an  indefinite 
number  of  persons  (social  property  in  the  above  sense), 
which  is  the  characteristic  mark  of    "res   publica?,"  is 
found  also  in  foundations  for  the  public  welfare.     The 
juristic  form  which  is  applied  to  them,  and  the  practical 
necessity  of  which  I  do  not  intend  to  dispute,  I  mean 
the  personification  of  the  foundation  ("universitas  bono- 
rum"),  must  not  deceive  us  here  either  concerning  the 
true  relation.     The  property  of  the  merely  imaginary 
juristic  person  is  an  empty  phrase.     It  is  not  for  the 
benefit  of  the  latter,  but  of  the  individuals  who,  accord- 
ing to  the  terms  of  the  foundation,  are  to  enjoy  its  advan- 
tages (beneficiaries).     Such  property  is  nothing  but  an 
apparatus  constructed  for  the  purpose  of  realizing  this 
object  in  a  juristically  convenient  manner,  without  any 
practical  reality  for  its  subject.     The  latter  is  merely 
the  bearer  of  rights  in  the  interest  of  others,  not  the 
subject  of  the  purpose.     The  subjects  of  the  purpose  are 
"  Quite  appropriately  the  Byzantines  designated  the  right  lying 
at  the  basis  of  this  popular  action  as  popular  right  {dlKaiov  drinoTiK6v). 


350  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

the  beneficiaries,  and  Roman  law  recognized  this  by 
giving  them  the  right  of  "actio  popularis"  as  in  "res 
publica^."^^  Putting  the  juristic  form  altogether  aside 
and  applying  exclusively  my  idea  of  the  subject  of  the 
purpose,  I  arrive  at  the  result  that  foundations  for  the 
public  welfare  must  be  placed  on  the  same  line  as  "res 
publicse"  in  reference  to  the  economic  function  for 
which  they  are  intended. 

To  be  sure,  their  resemblance  to  the  latter  is  not  true 
in  the  sense  that  their  use  is  absolutely  free  to  every  one, 
as  in  "res  publicae."  There  are  some  in  which  this  is  the 
case,  for  example,  picture  galleries  established  in  the 
form  of  a  foundation,  which  any  one  who  desires  to  do 
so  may  visit,  just  as  he  can  make  use  of  the  public  roads 
and  springs.  But  there  are  also  those  in  which  certain 
conditions  must  be  fulfilled  in  order  to  participate  in 
them,  which  do  not  depend  upon  the  beneficiary  himself, 
for  example  admission  to  a  home  for  widows,  or  the  award 
of  a  scholarship.  But  this  difference  must  not  hinder 
us,  after  we  have  once  applied  the  idea  of  the  subject 
of  the  purpose,  from  recognizing  society  in  the  above 
sense  as  the  subject  in  these  also.  The  interest  which 
the  foundations  have  for  society  will  justify  me  in 
pointing  out  their  essential  elements. 

By  "foundations"  language  understands  the  devotion 
of  things  or  capital  in  favor  of  indefinite  persons,  but  for 
a  permanent  and  not  a  temporary  purpose.  The  element 
of  indeterminateness  of  the  beneficiary  distinguishes  the 
foundation  from  a  liberal  assignment  of  property  to  a 

^'  Cod.  1.  3.  46  §  6.  .  .  .  "cogere  pium  opus  aut  piam  liberalita- 
tem  omnimodo  impleri  et  cuicumque  civium  idem  etiam  facere 
licentia  erit;  cum  sit  enim  communis  pietatis  ratio  (a  purpose  for  the 
public  welfare), commMweset  populates  debet  etiam  affectiones  con- 
stitui  harum  rerum  executionis,  habituro  unoquoque  licentiam  ex 
nostra  hac  lege  movere  ex  lege  condictitia  et  postulare  relicta 
impleri." 


§12]      SOCIAL  MECHANICS— COERCION        351 

determinate  person  ("inter  vivos,"  gift;  by  testament,  in- 
stitution of  an  heir,  legacy) .  The  element  of  permanence 
of  the  purpose,  or  rather  of  continuity,  the  recurrence 
of  the  appropriation  from  the  income  of  the  foundation's 
capital,  distinguishes  the  foundation  from  single  gifts  to 
a  number  of  indeterminate  persons,  which  are  at  once 
consumed;  publica/w5  ("Spenden"),asthey  may  fittingly 
be  called.''^  In  both  of  these  elements  benevolence  rises 
from  the  sphere  of  individual  generosity,  inspired  by 
personal  relations  or  qualities  (friendship,  poverty,  p.  78 
f.),  to  that  of  abstract  generosity.  It  is  not  a  definite 
single  person  to  whom  generosity  applies  itself  but  a 
class,  wide  or  narrow  (the  poor,  the  local  poor,  the  local 
poor  of  a  particular  confession;  widows,  widows  in 
general,  widows  of  servants  of  the  State,  of  servants 
of  the  State  of  a  particular  class;  students,  students  of 
the  State  university,  students  of  a  particular  subject). 
We  may  call  them  acts  of  social  liberality  in  contradis- 
tinction to  those  of  individual. 

In  reference  to  the  purpose  the  foundations  extend 
much  farther  than  alms.  The  latter  is  limited  to  giv- 
ing support  to  those  who  need  it.  It  is  public  charity, 
and  its  acceptance,  like  that  of  ordinary  charity,  is 
a  confession  of  need  on  the  part  of  the  recipient,  and 
hence    has    something    embarrassing    and    humiliating 

'^From  mediaeval  Latin  "spendere"  (expendere  —  to  spend, 
"expensa,"  "spensa,"  "spesa"  —  expense,  costs,  to  which  is  related 
our  German  "Speise"  [food],  "spise,"  "spisa").  In  Rome  such  alms 
("largitiones")  to  the  people  (grain,  meat,  wine,  oil,  etc.)  were  very 
frequent,  as  is  well  known.  Concerning  their  social  significance, 
see  my  "Geist  des  romischen  Rechts,"  II,  1,  pp.  249-253.  Modern 
forms  of  the  same  thing  are  the  distribution  of  soup,  wood  for  fuel, 
etc.,  in  times  of  necessity  by  special  associations  (in  former  times 
this  was  done  by  the  monasteries,  the  removal  of  which  produces  a 
sensible  loss  in  the  care  of  the  poor).  To  the  same  category  belongs 
also  the  Roman  Law  concept  of  "jactus  missilium." 


352  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

about  it  (p.  79).  But  the  purpose  of  foundations 
extends  as  far  as  the  need  of  human  life.  It  embraces 
in  addition  to  physical  needs  (nourishment,  clothing, 
shelter,  medical  care,  —  poor  establishments,  homes 
for  widows,  orphan  asylums,  hospitals)^''  also  spiritual 
(affording  the  means  for  artistic  or  scientific  education 
or  enjoyment,  —  libraries,  art  institutions,  scholarships). 
In  reference  to  the  juristic  form  the  jurist  distinguishes 
foundations  that  have  a  personality  of  their  own  ("uni- 
versitates  bonorum")  from  those  without  such.  The 
latter  embrace  those  foundations  in  which  the  money 
set  aside  for  the  purpose  is  given  to  an  already  existing 
personality  (State,  community,  church,  university,  etc.) 
by  imposing  upon  it  the  permanent  application  of  the 
money  in  accordance  with  the  terms  of  the  foundation, 
as  is  for  example  the  regular  form  today  in  scholarships 
for  students.  The  first  may  be  called  independent 
foundations,  the  latter,  dependent.  In  both  cases  the 
capital  of  the  foundation  exists  as  the  property  of  a 
person.  In  the  former  the  person  is  the  foundation 
itself,  in  the  latter  it  is  the  trustee. ^^  To  the  foundations 
of  the  latter  sort  belong  also,  according  to  the  juristic 
conception,  those  which  consist  in  the  construction  of 

*°  The  "piae  causae,"  "pia  corpora"  of  later  Roman  law.  The 
earliest  is  the  "tabula  alimentaria"  of  Trajan,  the  greater  number 
date  from  Christian  times.  Examples  in  Cod.  1.  2.  19,  "xeno- 
dochium,"  "orphanotrophium,"  "ptochotrophium,"  "gerontoco- 
mium,"  "brephotrophium."  The  Greek  names  indicate  their  late 
origin.  They  contain  a  new  proof  of  what  was  above  mentioned 
(p.  214):  the  influence  of  Christianity  in  promoting  the  benevolent 
feelings. 

*^  For  the  non-juristic  reader  I  observe  that  a  trustee  ("Fiduziar") 
is  one  to  whom  a  right  is  given  not  that  he  may  have  himself  the 
benefit  thereof,  but  that  he  may  exercise  it  in  behalf  of  another. 
He  is  the  possessor  of  the  right  not  for  his  own  interest,  but  solely 
as  trustee  {" Rechtstrdger"  [bearer  of  a  right],  see  my  "Geist  des 
romischen  Rechts,"  III,  1,  p.  217  ff.,  3d  ed.). 


§12]      SOCIAL  MECHANICS  — COERCION        353 

"res  publicse."  In  the  present  time  they  are  rare,  in 
Rome  they  were  very  frequent,  for  example  the  construc- 
tion of  public  springs,  theatres,  erection  of  statues,  etc. 
Mohammedan  law  has  even  formed  a  special  concept 
for  this.^2 

If  finally  I  speak  of  the  form  of  the  establishment  of 
foundations,  I  do  so  merely  in  order  to  make  clear  a 
concept  of  the  Roman  law  referring  to  foundations;  I 
refer  to  the  "poUicitatio"  (p.  215).  The  jurist  as  a  rule 
emphasizes  in  it  only  the  formal  juristic  element  of  the 
binding  force  of  a  unilateral  promise,  whereas  he  leaves 
outof  consideration  the  social  significance  of  "poUicitatio." 
It  consists  in  the  fact  that  "poUicitatio"  is  the  form  of 
foundation  ''inter  vivos."  It  is  the  counterpart  of /g^tomew- 
tary  foundation.  The  two  together  are  combined  in  the 
idea  of  social  liberality.^  Whereas  the  ancient  Roman 
law  had  not  yet  risen  (p.  208)  to  the  independent  juristic 
recognition  of  liberality  to  an  individual''  inter  vivos''  (gift) , 
it  recognized  early  social  liberality  among  living  persons 
as  an  independent  concept.  And  it  even  disregarded 
in  this  matter  the  technical  objection  which  the  theory  of 
contract  opposed  to  "poUicitatio"  in  the  requirement 
of  mutual  consensus.  The  Roman  does  not  sacrifice 
himself  for  the  individual,  but  he  does  so  for  the  com- 
munity. And  the  Roman  law  corresponds  to  this  feeling 
in  refusing  its  form  to  the  former  and  putting  it  at  the 
disposition  of  the  latter. 

82  "\Yakf'om"  —  dedication  or  devotion  to  the  common  welfare 
or  for  purposes  pleasing  to  God.  A  second  species  of  "wakf"  is  the 
one  for  children  ("wakf  ewlod").  We  should  call  it  family  settle- 
ment. Mohammedan  law  emphasizes  expressly  the  permanence 
and  ethical  character  of  the  purpose.  It  forbids,  for  example,  devo- 
tion for  the  welfare  of  unbelievers.  See  von  Tornauw,  "Das  Mos- 
lemitische  Recht"  (Leipzig,  1855),  pp.  155-159. 

'* "Liberalitates  in  civitates  coUatae,"  D.  50.  12.  3  §  1.  "Dona- 
tiones,  quae  in  rem  publicam  fiunt,"  ibid.  1  §  1. 


354  THE  CONCEPT   OF   PURPOSE    [Cji.  VIll 

The  Roman  law  never  developed  an  independent  form 
for  the  testamentary  foundation  (tlie  establishment  of 
a  foundation  as  the  only  content  of  a  will  and  testament) . 
This  purpose  could  be  attained  only  in  an  indirect  way 
by  the  institution  of  an  heir  who  would  make  the  founda- 
tion a  real  fact.  As  the  lax  custom  of  drawing  up  wills 
in  later  Christian  times  brought  to  light  testamentary 
dispositions  directed  immediately  to  this  end  (for  example 
the  institution  of  "captivi,"  "pauperes,"  etc.,  as  heirs), 
there  was  still  need  of  a  circuitous  course  adopted  by 
Justinian  (substitution  of  the  Church  and  the  com- 
munity as  the  heir  entrusted  with  the  execution  of  the 
disposition)  to  invalidate  the  objections  which  were 
opposed  to  their  legal  possibility.  After  our  modern 
theory  had  risen,  as  a  result  of  many  struggles,  to  the 
recognition  of  the  permissibility  of  a  direct  testamentary 
establishment  of  a  foundation,  the  legal  concept  of  social 
liberality,  which  in  Roman  law  received  in  "poUicitatio" 
its  first  partial  recognition,  reached  its  final  form.  And 
theory  must  take  account  of  this  fact  by  enunciating 
the  principle  that  the  subject  in  liberality  may  be  not 
only  a  person  in  the  legal  sense  ("persona  certa,"  physical, 
juristic),  but  also  society  ("persona  incerta").  The 
goods  which  are  given  to  it  in  this  way  —  no  matter 
what  form  technical  jurisprudence  may  appply  to  them — 
must  be  marked  from  the  political-economic  point  of 
view  as  social  wealth  or  property. 

In  reference  to  the  secondary  functions  of  things,  we 
have  again  our  three  different  subjects  in  servitude, 
namely, 

(a)  For  the  individual,  personal  and  land  servitude. 

(b)  For  the  State,  State  servitude.^ 

^  According  to  Roman  law  the  usual  personal  servitude  is  possible 
for  juristic  persons,  hence  also  for  the  State  —  scarcely  a  happy  idea, 
and  surely  not  worthy  of  being  retained  in  modern  legislation.    Its 


§12]      SOCIAL  MECHANICS  — COERCION        355 

(c)  For  society,  public  use  of  private  lands,  protected 
by  law.^^ 

2.  Obligation.  I  assume  the  concept  as  known 
and  confine  myself  merely  to  pointing  out  the  diliferent 
forms  which  it  assumes  according  to  our  three  subjects. 

The  subject  may  be  (a)  The  Individual.  In  this 
case  the  relation  belongs  to  private  law.  ,  The  means 
of  making  it  valid  is  to  prosecute  the  claim  by  way  of 
a  civil  process.  The  specifically  juristic  expression  for 
this  is  obligation.  For  the  two  following  classes, 
for  political  and  social  obligatory  relation,  this  expres- 
sion is  not  used;  it  is  one  entirely  peculiar  to  private 
obligation. 

(b)  The  State.  The  State  too  can  conclude  ordinary 
contracts  of  private  law.  In  this  case  the  principles  of 
private  law  are  valid  for  the  State  also,  actively  as  well 
as  passively.  The  State  (the  treasury)  may  sue  and  be 
sued.  It  is  different,  on  the  other  hand,  when  the  legal 
bond  has  its  ground  in  the  peculiar  purposes  and  prob- 
lems of  the  State,  as  for  example,  the  payment  of  taxes 
and  duties  (active),  and  of  salaries  (passive).  Here  the 
legal  bond  belongs  to  public  law,  and  it  is  made  valid 
not  by  means  of  civil  action,  but  in  forms  especially  pro- 
vided for  it. 

unnatural  character  is  shown  among  other  things  in  the  fact  that  it 
was  not  possible  to  admit  here  the  feature  which  goes  hand  in  hand 
with  personal  servitude,  namely,  its  duration  till  the  death  of  the 
person,  but  they  were  compelled  to  restrict  it  by  positive  prescrip- 
tion to  a  maximum  (100  years),  D.  7.  1.  56. 

^  The  legal  ground  may  be  twofold,  statute  and  permission  of  the 
owner.  The  former,  for  example,  in  a  towing  path,  D.  1.  8.  5;  41.  I. 
30  §  1 ;  the  latter  in  public  passages  through  courts  and  landed  estates, 
9.  3.  1  §  2,  "  .  .  .  locus  privatus,  per  quem  vulgo  iter  fit."  9.  2.  31. 
The  counterpart  of  the  private  thing  in  public  use  is  the  public  thing 
in  private  use,  "tabernae  publicae,  quarum  usus  ad  privatos  pertinet," 
D.  18.  1.32. 


356  THE   CONCEPT   OF   PURPOSE    [Ch.  VIli 

As  the  term  'Obligation"  is  applied  specifically  to 
private  law,  so  the  term  "Pflicht"^^  (duty)  and  the 
adjective  "pflichtig"  (bound  to  render  a  certain  per- 
formance, liable)  pertain  to  public  law.^'  To  be  sure 
we  apply  the  expression  "Pflicht"  (duty)  also  to  the  rela- 
tions of  private  law,  but  the  manner  in  which  it  is  done 
proves  the  correctness  of  the  definition  here  given,  and 
shows  at  the  same  time  the  fine  power  of  distinction 
residing  in  language.  We  speak  of  duties  of  guardians, 
parents,  children,  husband  and  wife,  but  not  of  duties 
of  the  buyer,  the  seller,  the  lessor,  the  lessee.     In  so  far 

"Old  High  German  "fliht,"  Middle  High  German  "phliht"  from 
"pflegen"  —  to  care  for,  manage,  administer,  hence  "Pfleger" 
(=  guardian,  especially  "Giiterpfleger"  [trustee]),  "Pflegekind" 
(foster-child),  "Pflegeeltern"  (foster-parents). 

"  "Staatsbiirgerpflicht"  (duty  of  a  citizen),  duties  of  jurymen, 
judges,  officials,  "steuerpflichtig"  (bound  to  pay  taxes  [person], 
dutiable  [article]),  "wehrpflichtig"  (liable  or  bound  to  serve  in  the 
army),  "pflichtig"  (bound,  liable),  etc.  All  these  expressions  are 
found  in  our  new  German  imperial  codes.  I  compared  the  latter 
for  the  terminology  observed  in  them  and  have  arrived  at  the  fol- 
lowing result.  In  the  codes  concerned  with  public  law  (Constitu- 
tion of  the  German  Empire,  Judiciary  Act,  Code  of  Criminal  Proce- 
dure) are  found  the  terms  "Pflichten"  (duties),  "pflichtig"  (bound), 
"verpflichten"  (to  bind),  "Verpflichtung"  (legal  bond),  "ver- 
pflichtet"  (bound).  On  the  other  hand,  "Verbindlichkeit"  (obliga- 
tory relation),  is  so  far  as  I  remember  not  found.  In  the  statutes 
dealing  with  private  law  (general  German  Bills  of  Exchange  Code  and 
the  German  Commercial  Code)  are  found  "Verbindlichkeit"  (obliga- 
tory relation),  "Wechselverbindlichkeit"  (obligation  arising  out  of 
commercial  paper),  "verpflichtet"  (legally  bound),  "Pflicht"  (legal 
duty),  for  example,  "Haftungspflicht"  (liabihty),  duty  of  timely 
presentation,  duties  of  trade  brokers,  of  the  board  of  directors  of  a 
joint-stock  company,  etc.  For  the  contractual  basis  of  the  obliga- 
tory relation  both  use  regularly  the  word  "Verbindlichkeit"  [obliga- 
tory relation]  (to  enter,  undertake),  but  also  "Verpflichtung"  [legal 
bond]  (to  enter,  undertake).  "Verpflichtung"  is  therefore  the  gen- 
eral expression,  "Verbindlichkeit"  the  special  expression  restricted 
solely  to  private  law.  The  application  of  the  expression  "Pflicht" 
(duty)  is  governed  by  the  point  of  view  presented  in  the  text  later. 


§12]      SOCIAL  MECHANICS— COERCION        357 

as,  in  certain  relations  of  private  law,  as  for  example 
in  those  above  mentioned  of  guardians,  parents,  etc.,  the 
law  prescribes  for  the  person,  in  the  interest  of  society,  a 
fixed  form  of  obligatory  relation  which  cannot  be  changed 
by  the  autonomy  of  the  party  (that  part  of  private  law 
which  the  Romans  designate  as  "jus  publicum  quod 
pactis  privatorum  mutari  non  potest"),  we  speak  of 
duties  also  in  these  relations.  And  this  without  consider- 
ing the  circumstance  whether  one  has  entered  into  the 
relation  of  his  own  free  will  like  the  husband,  or  by  com- 
pulsion as  the  guardian,  since  it  is  indifferent  as  far  as  the 
obligatory  status  is  concerned.  But  the  case  is  different 
where  the  person  himself  determines  the  character  and 
measure  of  his  legal  bond,  as  in  contracts.  In  this  case 
we  say  indeed  that  the  person  binds  himself  ("sich  *ver- 
pflichte'");  that  he  takes  a  legal  bond  upon  himself 
("Verpflichtungen  iibemehme");  but  we  do  not  call 
the  latter  "duties"  ("Pflichten").  But  in  so  far  as  the 
State's  legal  constraint  is  added  to  the  free  will  of  the 
individual  establishing  the  obligation,  this  merges  into 
duty  ("Pflicht").  The  seller,  unlike  the  guardian,  does 
not  take  a  duty  but  an  obligatory  relation  upon  himself, 
to  do  a  certain  thing.  But  after  he  has  established  it,  it 
changes  into  a  duty  before  the  tribunal  of  the  judge  if  he 
refuses  to  carry  it  out.  The  latter  would  have  to  say  to 
him,  if  he  wanted  to  express  himself  correctly,  "Since 
you  have  put  yourself  under  an  obligatory  relation  ("Ver- 
bindlichkeit"),  since  you  have  undertaken  a  legal  bond 
("Verpflichtung"),  you  have  the  duty  ("Pflicht")  to 
carry  it  out."  The  same  difference  is  expressed  by  the 
Romans  in  the  terms  "obligatio"  and  "oportet."  "Obli- 
gatio"  like  all  verbals  in  "io"  denotes  primarily  an  act, 
the  act  of  binding  oneself  on  the  part  of  the  debtors 
("Schuldner")  ("ligare"  toward  another — "ob-ligare"). 
It  denotes  in  the  second  place  the  condition  established 


358  THE  CONCEPT  OF   PURPOSE    [Ch.  Vlii 

by  the  act  ("obligatum  esse,"  being  bound,  obliged). 
To  this  state  of  being  bound  which  the  party  has  taken 
upon  itself,^^  the  law  attaches  as  its  consequence  the 
"oportet,"  the  command  to  carry  it  out.  It  is  the  same 
difference  between  the  private  and  public  side  of  the 
relation  that  is  expressed  in  the  terms  "Verpflichtung" 
(legal  bond)  and  "Verbindlichkeit"  (obligatory  relation) 
on  the  one  hand,  and  "Pflicht"  (duty)  on  the  other. 
Those  two  expressions  and  "obligatio"  refer  to  the 
party,  "Pflicht"  (duty)  and  "oportet"  refer  to  the  judge. 
When  the  party  makes  use  of  the  latter  expression,  he 
does  so  with  an  eye  to  the  judge. 

(c)  Society.  The  law  imposes  a  number  of  legal  bonds 
upon  us  which  have  as  their  subject  ("Destinatar") 
neither  a  definite  individual,  nor  the  State  (municipality, 
Church),  but  the  whole  people,  society.  They  are  such 
as  have  for  their  purpose  the  good  of  the  community,  — 
public  safety;  as  for  example,  the  obligation  of  maintain- 
ing in  repair  the  roads  in  front  of  our  lands,  the  dikes, 
etc.  Nowadays  their  enforcement  is  left  as  a  rule  to 
the  police.  Among  the  Romans,  the  point  of  view  that 
this  matter  concerns  the  interests  of  the  people  ("popu- 
lus")  and  constitutes  a  social  duty  found  its  legal  expres- 
sion in  the  "actio  popularis,"  to  which  every  citizen  was 
entitled  as  a  representative  of  the  people.^^     In  view  of 

*^  An  "obligatio  lege  introducta"  (D.  13.  2.  1)  is  a  product  of  later 
times,  which  would  have  seemed  as  contradictory  to  an  ancient 
Roman  as  the  so-called  "pignus  legale."  Both  concepts,  that  of 
obligation  as  well  as  that  of  pledge,  presuppose  in  the  original  con- 
ception an  act  of  will  of  the  subject.  Upon  this  primitive  national 
conception  was  based  the  necessity  of  the  many  "cautiones"  of 
Roman  procedure.  Plaintiff,  defendant,  representative,  had  to  bind 
themselves  by  their  own  deed.  With  us  the  law  imposes  upon  them 
the  legal  bond  in  question  —  "Verbindlichkeit"  (private  obligatory 
relation)  has  become  "Pflicht"  (legal  duty). 

*'  D.  47.  23.  1,  actually  designates  the  "jus  populi"  as  its  basis. 
Example,  the  "actio  de  posito  et  suspenso"  against  the  person  who 


§12]      SOCIAL  MECHANICS— COERCION        359 

the  changed  form  of  this  matter  at  the  present  time,  we 
might  designate  this  third  class  as  police  obligations  in 
contradistinction  to  private  and  public. 

In  addition  to  the  expressions  for  obUgation  which  we 
have  met  so  far,  the  German  language  possesses  a  few 
other  terms,  which  refer  to  a  special  form  of  the  relation. 
They  are  the  following:  — 

Compulsion.  The  expression  denotes  the  obligation 
of  a  person  not  so  much  to  do  a  thing  himself,  as  to 
have  it  done.  Compulsory  vaccination  obliges  us  to 
vaccinate  our  children;  compulsory  education,  to  edu- 
cate them;  compulsory  testimony,  to  be  heard  as  wit- 
nesses. The  application  of  compulsory  methods  for  the 
purpose  of  carrying  out  these  obligations  comes  under 
the  category  of  execution,  not  under  that  of  punishment. 
The  "penalties"  threatened  in  case  of  insubordination 
are  nothing  else  than  means  of  pressure  to  break  down 
resistance  .^° 

Burden.  The  original  meaning  of  the  expression 
seems  to  have  been  an  obligation  imposed  upon  a  per- 
son not  directly,  but  through  the  medium  of  real  estate, 
a  form  of  taxing  a  person,  which  constitutes  a  peculiarity 
of  the  old  German  law  as  against  the  Roman.  The 
subject  in  whose  benefit  the  burden  is  imposed  might 
be  an  individual  (perpetual  charge,  charge  on  realty), 
the  State  (Church,  municipality;    State  and  communal 

endangers  the  public  passage  by  placing  obstacles  or  suspending 
objects  from  his  house. 

'"The  Roman  concept  of  "multa"  in  contradistinction  to  "poena.'' 
The  example  of  the  Romans,  who  fixed  a  maximum  for  "multa,"  on 
the  attainment  of  which  no  further  coercive  measures  were  applied, 
has  been  imitated  in  the  Law  of  Civil  Procedure  of  the  German  Em- 
pire, §  355,  in  compulsory  testimony.  The  disadvantages  which  it 
entails  upon  the  refractory  witness  have  not  the  significance  of  a 
punishment,  but  of  means  of  pressure  for  the  purpose  of  carrying 
out  a  public  law  obligation. 


360  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

charges,  tithes),  society  (service-burden  of  repairing 
dikes,  of  road-repair,  and  of  the  building  of  churches). 
Some  of  these  burdens  were  later  transferred  from  the 
real  estate  to  the  person  (for  example,  quartering  charges, 
communal  charges),  and  the  name  burden  should  then 
have  been  replaced  by  another.  But,  as  often  happens, 
the  existing  name  was  retained  although  it  was  no  longer 
suitable.  The  expression  was  extended  even  to  the 
recently  proposed  legal  obligation  of  municipalities  to 
support  the  schools,  and  it  was  called  school  charge, 
although  it  would  be  more  correct  to  speak  of  school 
duty  C'Pflicht"). 

Debt.  In  modern  legal  phraseology  we  understand  by 
this  term  a  private  obligation  referring  to  money  (debts  = 
money  debts).  Payment  ("Zahlung")  corresponds  to 
it  as  its  fulfilment  (counting  ["zahlen"]  of  the  money; 
so  "numerare"  from  "numerus").  Consequently  the 
expression  debtor  and  its  correlative  creditor  would 
have  to  be  limited  to  this  connotation.  But  juristic 
terminology  did  not  bind  itself  to  this,  and  uses  both 
expressions  of  the  persons  having  respectively  the  right 
and  the  duty  in  general,  as  the  Romans  did  in  the  use  of 
their  "creditor"  and  "debitor";  which  were  also  origin- 
ally confined  to  money  debts. 

Service.  We  speak  of  "Dienstleistungen"  (deeds  of 
service)  when  it  is  a  question  of  particular  temporary 
acts.  We  speak  of  "Dienst"  (service)  and  "Dienst- 
verhaltniss"  (relation  of  service)  when  the  entire  serv- 
ice power  is  engaged  (attendants,  domestic  servants, 
footmen,  service-hire.  State  and  Church  service,  mili- 
tary service).  "Burden"  ("Last")  rests  on  the  thing, 
"service"  ("Dienst")  on  the  person. 

3.  Crime.  Crime  (including  also  offences  and  misde- 
meanors punished  by  fine  or  imprisonment)^^  has  been 

^'  Etymologically  "Ver-brechen"  (crime)  is  characterized  as  the 
breaking  ("Brechen")  of  order,  "\'er-gehen"  (offence)  as  going  beyond 


§12]      SOCIAL  MECHANICS  — COERCION        361 

defined  as  an  act  involving  a  public  penalty,  or  one  that 
is  in  violation  of  the  criminal  law.  The  definition  is 
correct,  it  contains  the  external  criterion  by  which  crime 
may  be  recognized,  but  it  is  purely  formal.  It  enables 
us  to  classify  human  acts  in  accordance  with  a  definite 
positive  law  as  being  crimes  or  not,  without  giving  us 
information  concerning  the  important  question  what 
crime  is  and  why  the  law  attaches  a  penalty  to  it.  In 
short  it  gives  us  the  external  mark,  hut  not  the  internal 
essence  of  crime. 

Other  definitions  have  tried  to  remedy  this  defect, 
but,  according  to  my  opinion,  with  little  success.  One 
regards  the  essence  of  crime  as  being  the  violation  of 
subjective  rights  (of  the  individual  or  State).  But 
crimes  against  morality,  perjury,  blasphemy,  etc.,  do 
not  violate  any  subjective  right.  Another  definition 
regards  crime  as  the  violation  of  the  freedom  secured 
by  the  State.  But  freedom  is  not  violated  by  the  crimes 
mentioned.  Still  another  regards  crime  as  the  violation 
of  the  legal  order.  But  the  legal  order  embraces  also 
private  law,  and  private  law  is  not  protected  by  penalty; 
and  not  every  act  contrary  to  law  is  a  crime.  The  same 
objection  applies  to  the  definition  of  crime  as  the  revolt 
of  the  individual  will  against  the  general.  For  in  so 
far  as  this  general  will  has  assumed  a  legal  form  (and 
beyond  this  there  can  be  no  question  of  its  legally  binding 
force)  it  coincides  with  the  legal  order.  This  definition 
contains  exactly  the  same  idea  as  the  one  before,  except 
that  it  is  not  so  good  because  less  definite.  If  we  apply 
it  as  it  reads,  then  deviation  from  the  prevalent  fashion 
or  the  domestic  mode  of  living  is  also  a  crime,  and  if  we 

("Hinaus-gehen")  ,"^her-tretung"  (misdemeanor)  as  stepping  beyond 
('Hinaus-trelen")  the  path  of  right.  Similarly  the  Roman  "delic- 
lum''  from  "de-linquere,"  "linquere,"  leaving  the  way  prescribed  by 

law. 


362  THE   CONCEPT  OF   PURPOSE    [Ch.  viii 

supply  the  missing  element  "legal,"  then  all  violations 
of  private  law  must  also  be  characterized  as  a  revolt 
against  the  general  will.  The  latter  commands  the 
debtor  to  pay  his  debt.  If  he  does  not  do  so,  he  revolts 
against  it. 

The  purpose  of  the  criminal  law  is  no  different  from 
that  of  any  law,  viz.,  the  security  of  the  conditions  of 
social  life.  But  the  manner  in  which  it  pursues  this 
purpose  is  peculiar.  It  makes  use  oi  punishment.  Why? 
Is  it  because  all  disregard  of  law  is  a  revolt  against  the 
authority  of  the  State  and  therefore  deserves  punish- 
ment? In  that  case  every  violation  of  law  should  be 
punished;  the  refusal  of  the  seller  to  fulfil  his  contract, 
of  the  debtor  to  pay  his  debt,  and  innumerable  other 
cases ;  and  then  there  would  be  only  one  kind  of  punish- 
ment, viz.,  for  disregard  of  the  law,  and  only  one  kind 
of  crime,  viz.,  the  insubordination  of  the  subject  to  the 
commands  or  prohibitions  of  the  government. 

Wherein  lies  the  reason  of  the  fact  that  whereas  the 
law  punishes  certain  acts  which  are  in  opposition  to 
it,  it  leaves  others  unpunished?  In  the  one  case  as  well 
as  in  the  other  we  are  dealing  with  disregard  of  the  law, 
and  hence,  if  the  latter  is  the  sum  of  the  conditions  of 
social  life,  we  are  dealing  with  an  attack  upon  these 
conditions.  Society  can  no  more  exist  if  contracts  of 
sale  are  not  carried  out,  and  loans  are  not  repaid,  than 
if  one  man  kills  or  robs  the  other.  Why  punishment 
in  the  one  case  and  not  in  the  other? 

Self -preservation  also,  and  reproduction  and  work 
are  conditions  of  social  life.  Why  does  not  society  secure 
these  by  law?  The  answer  is,  because  it  has  no  need  of 
doing  so  (p.  338).  The  same  consideration  which  causes 
society  to  take  refuge  in  the  law  at  all,  namely  the  recog- 
nition that  it  needs  it,  guides  it  also  in  reference  to  the 
criminal    law.     Where   the   other   means   are   sufficient 


5  12]      SOCIAL  MECHANICS  — COERCION        363 

for  the  realization  of  the  law,  the  application  of  punish- 
ment would  be  an  irresponsible  measure,  because  society 
itself  would  be  the  sufferer  by  it  (p.  280).  The  question  • 
for  what  cases  legislation  shall  fix  a  penalty  is  purely  a 
question  of  social  politics.  I  do  not  mean  the  social 
politics  which  directs  its  attention  merely  to  the  external 
goods,  but  politics  in  the  full  sense  of  the  word,  which  is 
synonymous  with  the  practical  estimation  and  security 
of  all  conditions,  including  the  moral,  of  the  prosperity 
of  society.  The  Roman  law  thought  it  necessary,  for 
good  reasons,  to  set  a  limit  in  their  own  interest  and  in 
the  interest  of  the  children  upon  the  liberality  of  man 
and  wife  toward  each  other.  It  forbids  for  this  reason 
gifts  between  man  and  wife.  But  it  assigns  no  penalty 
to  the  transgression  of  this  prescription.  Why  not? 
Because  the  nullity  of  the  gift  is  quite  sufficient  for  the 
purpose,  and  punishment  would  be  useless.  The  same 
thing  applies  to  the  case  of  the  seller  refusing  to  carry 
out  the  contract  of  sale,  or  the  debtor  refusing  to  repay 
the  loan.  Enforcement  of  the  contract  is  quite  sufficient, 
and  there  is  no  need  of  punishment.  There  as  here  the 
disregard  of  the  law,  the  revolt  of  the  particular  will 
against  the  general,  ends  with  the  powerlessness  of  the 
individual  will;  it  can  go  no  further  than  the  mere 
attempt.  The  anticipation  of  this  result  is  sufficient  as 
a  rule  to  stifle  the  attempt  itself  in  the  germ.  To  one 
case  of  attempted  resistance  there  are  millions  of  cases 
of  unresisting  submission  to  the  law.  Resistance  is  to 
be  feared  as  a  rule  in  well  ordered  conditions  of  the  law 
only  where  either  the  fact  or  its  legal  judgment  can  be 
an  object  of  dispute. 

But  suppose  these  conditions  changed,  and  the  civil 
law  assumed  dimensions  in  certain  directions,  for  example 
in  reference  to  the  reliability  of  weights  or  the  genuineness 
of  goods,  dimensions  which  bring  the  national  honesty 


364  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

and  solidity  into  discredit  abroad,  and  as  a  consequence 
diminish  the  export  trade,  what  would  the  legislator 
have  to  do  in  such  a  case?  Would  he  have  to  put  his 
hands  in  his  pockets  for  the  academical  reason  that  it 
is  a  violation  of  the  civil  law  and  not  of  the  criminal  law? 
The  difference  between  the  two  and  their  limits  he 
determines  himself.  He  does  not  have  to  take  his  con- 
cepts of  civil  and  criminal  law  from  theory,  but  theory 
must  shape  itself  according  to  his  views.  The  criminal 
law  begins  where  punishment  is  required  by  the  interest 
of  society.  And  when  loyalty  and  honesty  in  business 
cannot  be  kept  straight  without  it,  the  law  must  make 
use  of  punishment. 

This  is  the  condition  in  which  we  find  ourselves  today 
in  Germany.  Too  long  has  our  legislation  looked  on 
idly  while  irresponsibility,  dishonesty,  deception,  have 
raised  their  heads  ever  more  insolently  in  contract  rela- 
tions, and  have  brought  about  a  state  of  affairs  which 
makes  an  honest  man  almost  disgusted  with  life.  The 
idea  of  the  "genuine"  has  almost  disappeared  in  Germany 
in  the  case  of  most  articles,  not  merely  in  articles  of  food. 
Almost  anything  we  take  into  our  hands  is  spurious, 
counterfeit,  falsified.  Germany  once  had  a  large  export 
trade  in  linen.  Now  the  German  linen  industry  in  for- 
eign markets  has  been  crowded  out  almost  everywhere, 
and  rightly  so.  The  thousands  of  dollars  which  dis- 
honest weavers  or  manufacturers  gained  by  the  mix- 
ture of  cotton  have  lost  the  German  nation  millions, 
quite  apart  from  the  injury  done  to  our  good  name 
abroad.  If  these  falsifiers  had  been  threatened  in  good 
time  with  the  penalty  of  imprisonment,  we  should  be 
better  off.  Our  forefathers  in  the  free  imperial  cities, 
simple  artisans  and  tradesmen,  without  any  knowledge 
of  the  difference  between  civil  and  criminal  offences 
against  the  law,  showed  in  this  respect  a  much  truer 


§121      SOCIAL  MECHANICS  — COERCION        365 

insight  of  what  was  necessary  than  we  with  all  our  edu- 
cation in  theory.  They  did  not  hesitate  to  inflict  pun- 
ishment upon  breach  of  contract,  and  under  certain 
conditions  very  heavy  punishments;  as  for  example 
exile  and  exposure  on  the  pillory  f^  and  they  cared  for  solid 
work,  good  means  of  nourishment  and  honesty  in  trade 
and  intercourse  by  means  of  all  kinds  of  institutions. 
We  shall  probably  have  to  have  many  bitter  experiences 
yet  before  we  can  become  as  intelligent  as  they  were, 
and  free  ourselves  from  the  academic  prejudice  that  the 
sphere  of  contracts  is  a  privileged  wrestling  ground  for 
civil  injustice,  which  is  regarded  in  principle  as  inacces- 
sible to  punishment. 

Once  more,  then,  the  question  of  the  legislative  use 
of  punishment  is  purely  a  question  of  social  politics  in 
the  above  sense.  It  is  comprehended  in  the  maxim: — 
use  punishment  wherever  society  cannot  get  along  with- 
out it.  As  this  is  a  matter  of  historical  experience,  of 
the  conditions  of  life  and  morals  of  the  various  peoples 
and  times,  the  sphere  of  punishment  in  contradistinction 
to  that  of  the  civil  law  or,  which  is  the  same  thing,  the 
sphere  of  crime  in  the  widest  sense,  is  a  historically 
changing  one,  just  as  the  sphere  of  law  in  relation  to 
morality.  There  was  a  time  in  Rome  when  certain 
contract  relations,  as  for  example  "fiducia"  and  "manda- 
tum,"  were  entirely  devoid  of  legal  protection,  and  de- 
pended solely  upon  the  protection  of  custom  ("infamia"). 
Then  came  the  protection  of  the  civil  law  ("actio  fidu- 
ciae,"  "mandati"),  and  finally  the  protection  of  the 
criminal  law  ("crimen  stellionatus"). 

But  no  matter  how  variable  the  extent  of  crime  may  be, 
the  concept  is  always  the  same.     It  always  represents 

'2  Rich  material  in  Wilhelm  Sickel,  "Die  Bestrafung  des  Vertrags- 
bruchs  und  analoger  Rechtsverletzungen  in  Deutschland"  (Halle, 
1876). 


366  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

to  us,  on  the  part  of  the  criminal,  an  attack  on  the 
conditions  of  social  life;  on  the  part  of  society  it  rep- 
resents its  conviction,  expressed  in  the  form  of  law,  that 
it  can  ward  it  off  only  by  means  of  punishment.  Crime 
is  that  which  endangers  the  conditions  of  social  life,  and  of 
which  legislation  is  convinced  that  it  can  be  removed  only 
by  punishment. 

The  standard  by  which  the  legislator  measures  this 
character  of  crime  is  not  the  concrete  danger  of  the 
particular  act,  but  the  abstract  danger  of  the  whole 
category  of  acts.  The  punishment  of  a  particular  act  is 
only  the  necessary  consequence  of  the  threat  of  punish- 
ment once  it  is  made,  for  without  it  the  latter  would  be 
ineffective.  Whether  the  particular  act  endangers  society 
or  not  is  quite  indifferent,  and  there  is  no  error  more 
serious  in  criminal  law  than  to  substitute  the  standpoint 
of  the  execution  of  punishment  for  that  of  the  threat 
thereof. 

Violation  of  the  civil  law  is  also  in  opposition  to  the 
conditions  of  social  life,  but  it  is  an  attempt  of  the 
powerless  against  the  powerful,  which  glides  off  without 
producing  any  effect.  The  means  of  the  civil  law  (legal 
action  and  nullity)  are  quite  adequate  for  society  to 
defend  itself  against  the  attack.  The  complete  failure 
of  the  latter  makes  punishment  superfluous. 

The  criminal  law  shows  us  everywhere  a  gradation 
of  punishment  according  to  the  nature  of  the  crime.  It 
will  be  granted  that  a  definition  of  crime  which  gives  the 
key  for  the  explanation  of  this  fact,  and  at  the  same  time 
supplies  the  standard  for  the  gravity  of  the  penalty,  is 
to  be  preferred  to  every  other  that  cannot  do  this.  I 
believe  I  can  claim  this  for  my  definition.  The  stand- 
point of  endangering  the  conditions  of  social  life  embraces 
two  elements  that  are  capable  of  gradation,  and  should 
therefore  be  considered  in  the  legislative  estimation  of 


§12]      SOCIAL  MECHANICS— COERCION        367 

punishment.  They  are,  the  conditions  of  life — not  all 
are  equally  important,  some  are  more  essential  than 
others :  and  the  danger  accruing  to  them  —  not  every 
injury  to  the  conditions  endangers  society  equally. 

The  higher  a  good  stands,  the  more  thought  we  take 
to  make  it  secure.  Society  does  the  same  thing  with  its 
conditions  of  Hfe  (I  shall  call  them  social  goods)  in  so  far 
as  the  legal  protection  is  concerned  which  it  summons  for 
their  security.  The  higher  the  good,  the  higher  the 
punishment.  The  list  of  penalties  gives  the  standard  of 
values  for  social  goods.  What  price  is  for  business, 
that  punishment  is  for  criminal  law.  If  you  put  the  social 
goods  on  one  side  and  the  penalties  on  the  other,  you 
have  the  scale  of  social  values.  And  if  you  do  this  for 
the  various  peoples  and  times,  you  will  find  that  the  same 
fluctuations  in  value  which  commerce  shows  in  economic 
goods  as  indicated  by  the  price,  are  also  seen  in  the 
criminal  law  in  reference  to  the  social  goods  as  indicated 
by  the  penalty.  Life,  honor,  religion,  morality,  mili- 
tary discipline,  etc.,  did  not  always  have  the  same  rate 
of  exchange.^^     Some  things  stand  low  with  us  which 

'^  Exemplified  in  my  "Kampf  ums  Recht,"  (7th  ed.),  p.  32.  I 
print  the  passage  here,  "Theocracy  stamps  blasphemy  and  idolatry 
as  capital  crimes,  whereas  it  sees  in  the  removal  of  boundary  marks 
only  a  simple  offence  (Mosaic  law).  An  agricultural  State  on  the 
other  hand  will  conversely  inflict  the  entire  weight  of  its  punishment 
upon  the  latter,  whereas  it  lets  the  blasphemer  go  with  a  very  mild 
punishment  (old  Roman  law).  A  commercial  State  will  give  the 
first  place  to  the  counterfeiting  of  coins  and  forgery  in  general; 
a  military  State  will  give  it  to  insubordination,  malfeasance  in  office, 
etc.;  an  absolute  State,  to  Ihse-majeste;  a  republic  to  ambition  for 
royal  power,  and  all  of  them  will  exhibit  a  severity  in  this  place 
which  forms  a  strong  contrast  to  the  manner  in  which  they  prose- 
cute other  crimes.  In  short,  the  reaction  of  the  sense  of  right  of 
States  and  individuals  is  most  violent  where  they  feel  themselves 
immediately  threatened  in  their  peculiar  conditions  of  life. 


368  THE   CONCEPT  OF   PURPOSE    [Cn.  Viii 

were  high  in  former  times,  and  conversely.  The  judg- 
ment of  society  concerning  the  greater  or  lesser  impor- 
tance of  certain  conditions  of  life  varies.  This  point  of 
view  of  the  valuation  of  injured  goods  in  the  criminal 
law  meets  us  in  all  its  simplicity  in  the  regulations  of  the 
old  German  laws  concerning  bodily  injury  and  homicide. 
All  parts  of  the  body  had  their  precise  values.  Nose, 
ears,  teeth,  eyes,  foot,  hand,  finger,  everything  had  its 
definite  price;  "price  currents  of  the  criminal  law,"  as 
they  have  been  called. ^^  Similarly  the  life  of  a  noble- 
man, of  a  freeman,  of  a  slave.  It  was  the  valuation  of 
man  from  the  standpoint  of  the  criminal  law.  The 
valuation  of  society  in  the  same  way  is  the  criminal  law. 
What  is  the  value  of  human  life,  honor,  freedom,  prop- 
erty, marriage,  morality,  security  of  the  State,  military 
discipline,  etc.?  Open  the  book  of  the  criminal  law  and 
you  will  find  it. 

In  commerce,  the  system  of  money,  i.  e.,  the  differ- 
ences in  value  of  gold,  silver,  copper  and  nickel,  and  the 
divisibility  of  the  metals,  makes  possible  the  fixation  of 
minimal  differences  in  value.  The  criminal  law  solves 
the  same  problem  likewise  partly  by  the  variation  of  the 
penalties  (penalties  affecting  life,  honor,  freedom,  money), 
partly  by  their  divisibility  (penalties  affecting  freedom 
and  money,  permanent  or  temporary  withdrawal  of 
civil  rights  —  honor  cannot  be  taken  away  temporarily). 
Between  the  lowest  penalty  affecting  money  or  freedom 
and  the  death  penalty  there  is  a  wide  field,  wide  enough  to 
make  possible  the  finest  nuances  and  particularizations 
in  the  criminal  law. 

In  addition  to  the  objective  element  of  the  threatened 
good  on  the  part  of  society,  there  is  the  subjective  element, 
on  the  part  of  the  criminal,  arising  from  his  disposition 
and  the  manner  in  which  the  crime  was  carried  out, 

•^  Wilda,  "Strafrecht  der  Germanen,"  (Halle,  1842),  p.  729. 


§12]      SOCIAL  MECHANICS— COERCION        369 

which  constitutes  him  a  danger  to  society.  Not  every 
criminal  who  commits  the  same  crime  endangers  society 
in  the  same  degree.  Society  has  more  to  fear  from  the 
relapsing  or  habitual  criminal  than  from  the  novice  in 
crime;  it  has  more  to  fear  from  a  conspiracy  or  band 
than  from  a  single  individual.  Cunning  threatens  greater 
dangers  than  passion ;  design  than  negligence. 

I  now  turn  to  the  classification  of  crimes  according  to 
the  nature  of  the  subject  against  whom  they  are  directed.^* 

'*  Htigo  Meyer  also,  "Lehrbuch  des  Deutschen  Strafrechts, "  (2d 
ed.,  1877),  §  84,  to  which  my  attention  was  not  called  until  after 
the  appearance  of  the  first  edition  of  my  work,  arrives  at  a  threefold 
classification  of  crimes,  which  coincides  with  mine  in  content.  The 
first  two  classes  are  the  same  as  miine,  crimes  against  the  individual 
and  against  the  State.  The  third  he  characterizes  as  crimes  against 
general  legally  protected  interests,  by  which  he  understands  those  which 
I  designate  as  crimes  against  society.  The  author  thus  gives  up  the 
basis  of  classification  from  which  he  derived  the  first  two  members, 
vis.,  the  person  against  whom  the  crime  is  directed,  and  substitutes 
another,  that  of  the  legally  protected  interest.  His  classification, 
therefore,  lacks  the  unity  of  the  "fundamentum  dividendi,"  not  to 
speak  of  the  fact  that  no  crime  can  be  committed  against  a  good, 
the  crime  is  always  directed  against  the  bearer  of  the  good.  The 
injury  or  the  endangering  of  the  good  is  forbidden  only  in  the  inter- 
est of  the  bearer  and  not  in  that  of  the  good  itself.  If  we  have  to 
bring  in  the  objective  standpoint  of  the  good,  then  the  two  first 
categories  also  must  be  determined  in  accordance  with  it  as  the 
injury  of  the  interests  of  the  individual  and  of  the  State.  The  impor- 
tant element  of  the  classification  set  up  by  me,  viz.,  the  idea  of  the 
subject,  which  is  laid  at  its  basis,  was  not  seen  by  Meyer  despite  the 
similarity  of  the  three  categories  in  content.  And  I  attribute  so 
much  importance  to  my  presentation  of  this  idea  because  the  appli- 
cation of  the  idea  of  the  subject  in  the  classification  of  crimes  is 
only  a  special  case  of  this  point  of  view  which  I  set  up  and  carried 
through  to  the  widest  extent,  not  merely  in  the  world  of  law  but  in 
the  entire  ethical  world-order  (II,  pp.  133-154).  My  classification 
has  no  value  for  me  as  such,  but  only  because  it  confirms  the  cor- 
rectness and  realizability  of  the  quite  general  idea  discovered  by  me 
in  another  way.  Let  him  who  adopts  it  in  criminal  law  see  how  he 
can  do  without  it  in  other  applications. 


370  THE   CONCEPT   OF   PURPOSE    [Ch.  VIli 

There  will  be  no  danger  of  misunderstanding  if  for  the 
sake  of  brevity  I  shall  speak  of  the  subject  in  crime  also, 
though  it  would  be  more  correct  to  say,  the  subject  for 
whose  sake  the  crime  is  forbidden. 
ThQ  subject  in  crime  may  be 

(a)  The  Individual.  Crimes  against  an  individual 
have  long  been  comprehended  by  criminologists  in  a 
unitary  concept  and  designated  by  the  name  of  private 
crimes.  I  distinguish  three  classes,  according  as  they 
threaten  the  conditions  of  the  subject's  physical,  eco- 
nomic, or  ideal  life. 

The  physical  conditions  of  life  are  threatened  in  their 
totality  (life)  by  murder  and  homicide,  and  by  the  expo- 
sure of  helpless  persons  (for  abortion  and  the  duel  see 
below) ;  partially  by  bodily  injury  (mutilation  of  the  body, 
injury  to  health  and  to  the  intellectual  powers). 

The  economic  conditions,  i.  e.,  property,  are  threatened 
by  robbery,  theft,  embezzlement,  damage,  removal  of 
boundary  marks,  extortion,  criminal  self-seeking,  decep- 
tion, treachery. 

By  ideal  conditions  of  life  I  mean  all  those  goods 
which  are  not  outwardly  visible,  but  exist  only  in  idea, 
and  without  the  security  of  which  in  accordance  with  the 
notions  of  society,  a  satisfying  and  ethical  life  is  not  pos- 
sible. These  are,  freedom  (crimes  against  it  are  kidnap- 
ping, seduction,  rape,  taking  away  the  use  of  one's  per- 
sonal freedom,  illegal  imprisonment,  constraint,  breach 
of  domestic  peace),  honor  (insult,  false  accusation,  vio- 
lating another's  secrets,  soliciting  for  sexual  intercourse) , 
family  (adultery,  bigamy,  crimes  against  personal  status, 
in  particular  the  substitution  of  children). 

(b)  The  State.  The  crimes  directed  against  it  are 
not  limited  to  the  State  crimes  of  criminalistic  theory, 
but  extend  as  far  as  the  conditions  of  political  life  which 
may  be  threatened  by  them.     The  expression  public 


§12]      SOCIAL  MECHANICS— COERCION        371 

crimes  is  not  appropriate  according  to  my  opinion, 
because  like  the  Latin  "publicus"  ("publica  utilitas," 
"publice  interest"),  it  is  also  used  in  application  to 
society  (crimes  against  public  safety,  see  below).  To 
differentiate  these  crimes  from  the  social,  I  use  the  expres- 
sion political. 

Political  crime  is  characterized  as  an  attack  on  the 
conditions  of  political  life.  Can  the  latter  be  classified? 
If  this  were  possible,  we  should  at  the  same  time  obtain 
a  classification  of  the  crimes  directed  against  them. 

The  simplest  method  would  seem  to  be  to  carry  over 
the  classification  made  above  in  the  individual;  which, 
as  we  shall  see  later,  is  applicable  also  to  society.  The 
only  objection  is  that  the  State  has  no  physical  existence 
in  the  true  sense  of  the  word.  Physically  considered  it 
is  nothing  more  than  the  sum  of  all  the  members  of  the 
State.  But  the  State,  too,  exists,  and  we  can  place  the 
indispensable  conditions  of  its  existence  on  the  same  line 
with  those  of  the  individual,  except  that  in  the  former 
also  as  well  as  in  the  latter  we  separate  the  economic 
conditions  from  the  physical ;  although  the  physical  life 
is  just  as  impossible  in  the  State  without  the  economic 
means  for  its  preservation,  as  in  the  individual. 

Indispensable  in  this  sense,  i.  e.,  postulated  with  abso- 
lute necessity  in  the  concept  of  the  State,  hence,  meta- 
phorically speaking,  a  physical  condition  of  the  life  of 
the  State,  an  element  constituting  its  essence  —  is  the 
possession  of  a  territory.  Next  comes  the  possession  of 
the  highest  power;  hence  the  organization  of  the  forces 
of  the  State  (government),  the  system  of  officials,  includ- 
ing the  sovereign  as  the  highest  officer  of  the  State,  deter- 
mined by  birth,  and  the  army.  All  acts  which  have 
as  their  purpose  to  remove  or  to  threaten  this  power 
of  the  State  which  is  posited  in  its  existence,  I  would  class 
among  those  that  endanger  the  physical  conditions  of 


372  THE   CONCEPT   OF   PURPOSE    [Ch.  vili 

the  life  of  the  State;  hence  treason  to  the  country,  high 
treason,  revolt,  riot,  hostile  acts  to  friendly  States.  Then 
come  the  peculiar  offences  of  the  officials,  upon  whose 
dutiful  conduct  the  whole  system  of  the  State  power  de- 
pends; and  of  the  soldiers,  of  whose  dutifulness  in  the 
service  (evasion  of  service,  desertion)  and  obedience 
(insubordination,  mutiny)  the  same  holds  true. 

The  economic  conditions  of  the  life  of  the  State  are 
threatened  by  refusal  of  taxes,  defrauding  the  govern- 
ment, embezzlement  of  public  moneys. 

I  called  freedom,  honor  and  family  the  ideal  conditions 
of  the  life  of  the  individual.  We  can  speak  of  a  crime 
against  honor  in  the  State  also  (insult  to  the  sovereign, 
to  the  honor  of  the  ofhce).  By  crimes  against  the 
freedom  of  the  State  I  understand  those  which  hinder  its 
voluntary  action,  i.  e.,  the  functions  of  its  organs  or  citi- 
zens which  are  necessary  for  its  purpose ;  hence  resistance 
to  the  authorities,  refusal  to  serve  on  the  jury  and  the 
witness  stand,  crimes  in  reference  to  the  exercise  of  the 
rights  of  citizens. 

I  must  not  conceal  the  fact  that  in  this  attempt  to 
carry  over  to  the  State  the  division  of  physical,  eco- 
nomic and  ideal  conditions  of  life  which  are  applicable 
to  the  individual  and  society,  I  have  the  feeling  that 
this  is  possible  only  in  a  forced  manner.  I  shall  be  the 
first  to  feel  gratified  if  this  classification  be  replaced 
by  another  which  shall  answer  better  to  the  peculiarities 
of  the  State. 

The  subject  in  crime  may  be  finally 

(c)  Society.  I  designate  these  crimes  as  social.  They 
are  those  by  which  neither  the  individual  nor  the  State 
is  threatened,  but  the  masses,  society  (acts  dangerous 
to  the  community). 

The  physical  conditions  of  the  life  of  society,  i.  e.,  the 
external  security  of  its  existence,  are  threatened  by  arson, 


§12]      SOCIAL  MECHANICS— COERCION        373 

the  causing  of  an  inundation,  destruction  of  dikes,  dams, 
railroads,  and  also  by  breach  of  the  peace  of  the  land. 
It  is  not  this  or  that  person  whom  the  perpetrator  has 
in  mind ;  or,  even  when  such  is  the  case,  it  is  not  a  par- 
ticular person  who  suffers  from  the  deed,  but  an  indeter- 
minate number  of  people,  the  masses. 

The  economic  conditions  of  the  life  of  society,  i.  e., 
the  security  of  commerce,  are  threatened  by  false  coinage 
and  the  counterfeiting  of  documents.  It  is  a  complete 
mistake,  in  my  opinion,  to  place  the  first  of  the  two  among 
political  crimes,  for  the  State  is  in  nowise  injured  thereby, 
not  even  as  the  proprietor  of  the  prerogative  of  coinage. 
-For  what  injury  can  false  coins  do  to  the  State?  The 
privilege  of  coining  money  has  nothing  to  do  with  the 
essence  of  the  State,  i.  e.,  with  its  power.  Instead  of 
the  State  the  banks  could  issue  coins  as  they,  in  fact, 
issue  banknotes,  the  counterfeiting  of  which  must  be, 
and  is,  punished  in  the  interest  of  the  public  quite  as 
much  as  the  paper  money  or  the  coins  issued  by  the 
State.  Society  alone  is  injured  by  false  coins  or  money, 
not  the  particular  person  who  happened  to  have  gotten 
it,  for  counterfeit  money  passes  from  hand  to  hand. 
Business  in  general  suffers,  and  the  feeling  of  security 
disappears.  The  same  is  true  of  false  documents.  Busi- 
ness can  not  go  on  if  every  coin  and  every  document 
must  first  be  tested  for  its  genuineness. 

The  ideal  conditions  of  the  life  of  society  are  threatened 
in  their  ethical  and  religious  foundations  by  perjury, 
for  example,  and  offences  against  morality  and  religion. 
Is  it  possible  to  commit  a  crime  against  religion  and 
morality?  Only  in  the  same  sense  as  against  property 
and  honor,  i.  e.,  the  crime  is  not  committed  against  these 
concepts.  This  would  be  as  absurd  as  a  crime  against 
the  air,  by  infecting  it,  or  the  water,  by  poisoning  it. 
The  crime  is  committed  always  against  a  person.     In 


374  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

crimes  against  honor  and  property  the  injured  person 
is  the  individual,  in  the  crimes  above  named  it  is  society. 
It  is  not  God,  as  was  formerly  assumed  in  reference  to 
religious  offences  and  perjury,  for  God  cannot  be  injured. 
And  the  circumstance  that  crime  denotes  a  falling  away 
from  God,  i'.  e.,  a  sin,  is  true  of  all  crimes,  not  of  particular 
ones  only.  Nor  is  it  the  State,  for  its  power  is  not 
threatened  by  them. 

To  the  category  of  social  crimes  in  the  wider  sense 
belong  also  most  offences  against  the  police.  The  police 
are  in  a  very  proper  sense  the  representatives  of  the 
interests  of  society,  using  the  term  in  the  more  limited 
meaning  as  defined  here. 

I  have  omitted  so  far  two  crimes  of  a  dubious  nature, 
and  I  want  to  say  a  few  words  about  them. 

First,  the  duel.  We  may  see  in  the  duel  an  interference 
with  the  judicial  sovereignty,  inasmuch  as  the  duellists 
fight  their  differences  out  alone  instead  of  allowing  the 
courts  to  decide  them.  If  they  did  it  with  sticks  or  a 
squirt  or  by  means  of  a  contest  in  running  instead  of 
deadly  weapons,  no  one  would  see  in  it  anything  criminal. 
The  deciding  elements  are  the  deadly  weapons  and  the 
reciprocal  danger  to  life  caused  by  them.  For  this  reason 
the  duel  does  not  belong  to  political  crimes,  but  to 
private  (reciprocal  danger  to  life). 

Secondly,  abortion.  Who  is  the  subject  here?  The 
future  child?  It  does  not  yet  exist  as  a  person.  It  is 
at  the  time,  as  the  Roman  law  properly  says,  a  part  of 
the  mother.  The  subject  in  abortion  is  therefore  not 
the  child,  but  society.  Its  criminality  consists  in  the 
fact  that  it  endangers  the  coming  generation,  which 
belongs  to  the  conditions  of  the  life  of  society  (p.  339). 

I  will  not  deny  that  some  of  the  crimes  I  classified 
above  may  also  be  brought  under  a  different  category. 
I  arranged  them  according  to  the  point  of  view  that  seemed 
proper  to  me. 


§12]      SOCIAL  MECHANICS  — COERCION        375 

The  classification  of  crime  according  to  the  subject 
in  whose  behalf  it  is  forbidden,  which  I  attempted  in  the 
above  discussion,  does  not  claim  to  exercise  a  deter- 
mining influence  upon  the  systematic  treatment  of  crim- 
inal law.  I  made  it  with  1;he  sole  purpose  of  showing 
that  my  idea  of  the  subject  is  applicable  also  to  crime, 
and  this,  I  hope,  I  have  succeeded  in  doing.  The  crim- 
inalist may  reject  this  classification  as  not  available  for 
his  purposes,  just  as  the  civilian  will  and  must  reject 
my  conception  of  foundations.  There  are  various 
points  of  view  from  which  a  subject  may  be  considered, 
and  every  one  of  them  is  justified  if  it  furthers  the  matter 
in  any  way.     I  think  I  may  claim  this  for  mine. 

My  discussions  of  the  subject  in  law  are  now  finished. 
Whether  they  will  gain  assent  in  all  details  I  am  not 
much  concerned.  But  I  do  lay  great  stress  upon  intro- 
ducing the  fundamental  idea  that  the  highest  principle 
of  classification  in  law  from  the  philosophical  point  of 
view  is  the  subject  for  whose  sake  the  law  is  made;  and 
that  in  addition  to  the  individual  and  the  State  (Church, 
associations)  society  also,  in  the  narrower  sense,  must 
be  recognized  as  such  a  subject.  The  less  the  jurist 
will  be  reconciled  to  this  third  subject,  which  can  not  be 
classed  in  his  category  of  legal  subjects,  the  more  I  think 
it  imperative  to  strengthen  the  above  proof  of  its  justi- 
fication by  giving  it  a  historical  safe-conduct  on  its  way, 
issued  by  no  less  a  person  than  the  model  nation  of  the 
law,  the  Romans.  They  apprehended  the  concept  of 
society  in  the  above  sense  and  gave  it  expression  in  their 
government  with  a  clearness,  keenness  and  consistency 
belonging  to  a  theoretical  problem,  as  if  it  had  been  a 
question  of  an  abstract  and  systematically  correct  formu- 
lation of  a  concept  not  in  any  way  restricted  by  practical 
considerations.     Witness  the  offices  of  censor  and  aedile. 

The  subject  to  which  the  censors  and  aediles  had  to 


376  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

turn  their  attention  and  their  care  was  society  in  the  sense 
we  defined  it  above.  It  was  the  business  of  the  censors 
to  determine  what  was  the  condition  of  Roman  society 
at  the  time,  and  what  means  it  was  in  a  position  to  place 
at  the  disposal  of  the  powers  of  the  State.  They  had 
to  keep  the  government  informed  of  the  number  and 
increase  of  population,  of  the  number  of  men  under 
arms  and  their  equipment,  of  the  amount  of  capital,  etc., 
in  short  their  problem  was,  in  a  word,  the  statistics  of  the 
national  forces,  in  the  interests  of  the  governtnent  ad- 
ministration. Out  of  this  statistical  function  developed 
in  a  natural  progress  the  censorious  function.  If  the 
wealth  of  any  one  retrograded  since  the  holding  of  the 
last  census,  it  was  the  most  natural  thing  for  the  censor 
to  inquire  after  the  reasons ;  and  if  the  man  was  not  able 
to  give  a  just  account  of  himself,  to  deliver  him  a  lecture 
and  remind  him  of  his  duties  to  society.  In  case  of 
repetition  of  the  offence,  the  admonition  changed  into 
a  reprimand  and  a  public  censure  ("nota  censoria"). 
Bad  management,  careless  cultivation  of  the  field,  was 
a  censorial  offence,  for  the  well-being  of  society  could 
proceed  only  if  every  man  did  his  duty  and  obligation 
as  a  proprietor.  The  same  applied  to  celibacy  and 
childlessness;  for  society  had  need  of  the  new  genera- 
tion. For  this  reason  a  person  who  had  had  no  chil- 
dren with  his  wife  regarded  himself,  in  consequence  of 
the  censor's  admonition,  as  required  to  separate  from  her 
and  marry  another.  Here  we  have  two  of  our  "mixed- 
legal"  conditions  of  social  life,  viz.,  work  and  reproduc- 
tion (p.  338),  as  the  object  of  the  censor's  care.  But 
they  were  not  protected  in  the  form  of  law.  The  require- 
ments which  the  censor  made  were  not  legal  in  their 
nature.  He  could  not  employ  the  penalties  of  the  law 
(fine,  imprisonment,  death)  against  disobedience;^^  the 

''See  my  "Geist des romischen  Rechts,"  II,  1,  p.  54  ff.  (3d  ed.). 
Cicero,  "Pro  Cluentio,"  ch.  42.     "Majores  nostri  (animadversionem 


§12]      SOCIAL  MECHANICS  — COERCION        377 

only  pressure  he  could  bring  to  bear  was  the  moral  one 
of  ethical  disapproval,  by  which  society  emphasized  its 
ethical  demands  (Ch.  IX),  and  which  he,  as  the  repre- 
sentative of  public  opinion,  employed.  The  censor  was 
the  legal  personification  of  public  opinion,  of  the  ethical 
judgment  of  the  people.  His  power  extended  farther 
than  public  opinion  only  in  this,  namely  that  whereas 
the  latter  could  realize  the  idea  of  exclusion  from  the 
community  of  one's  fellowmen  only  in  a  social  way,  he 
was  able  to  give  this  idea  a  legal  form  by  depriving  an 
unworthy  person  of  positions  of  political  honor,  which 
indeed  are  dependent  upon  the  respect  of  one's  fellow- 
men  (exclusion  from  the  senate,  from  the  order  of 
knights,  from  the  "tribus").  The  point  of  view  which 
guided  the  censor  in  his  ethical  regimen  was  not  regard 
for  the  individual  as  with  the  pastor,  and  the  father  con- 
fessor, but  for  society.  Morality  interested  him  only 
on  the  side  of  its  practical  value  to  society,  i.e.,  as  an 
indispensable  condition  for  the  progress  of  society;  for 
the  conservation  and  increase  of  the  national  power. 
It  was  the  thought,  in  short,  that  national  morality  is 
national  power. 

The  office  of  the  aediles  also  turned  exclusively  about 
society.  They  had  nothing  to  do  with  the  State  as  such. 
The  interests  which  they  had  to  guard  were  solely  those 
of  the  people,  of  the  masses. 

They  were  the  following,  1.  Care  for  the  physical 
conditions  of  the  life  of  the  people;  viz.,  maintenance, 
grain,  water,  baths,  cook-shops,  security  of  public 
thoroughfares,  repairs  of  houses  and  of  public  roads,  etc. 

2.  The  economical  conditions:  trade,  market  police, 
genuine  coinage,  measures,  weights,  usury  in  money  and 
grain,  transgressions  of  the  social-political  regulations  of 

et  auctoritatem  censoriam)  nunquam  neqne  judicium  nominaverunt 
neque  perinde  ut  rem  judicatam  observaverunt." 


378  THE   CONCEPT   OF   PURPOSE    [Ch.  VIli 

the  "Lex  Licinia"  concerning  the  use  of  the  "ager 
pubHcus,"  etc. 

3.  The  Ideal  conditions:  morahty  (prosecution  of 
offences  against  chastity,  ancient  press  poHce,  i.e.,  the 
destruction  of  immoral  or  dangerous  books),  pubHc 
decorum  (offensive  appearance  in  public,  disrespect  to 
the  sovereign  people),^'  economy  and  sobriety  (limita- 
tion of  luxury  even  at  funerals,  management  of  the 
sumptuary  laws,  confiscation  of  dainties  exhibited  in 
public),  pleasures  of  the  people  (popular  festivals, 
games) . 

The  province  of  the  aediles  ^^  as  shown  in  this  by  no 
means  exhaustive  sketch  presents  them  as  the  protectors 
of  Roman  society  in  the  narrower  sense,  as  police  admin- 
istrators of  the  public  safety  and  welfare.  The  requisite 
external  power  of  enforcement  they  enjoyed  was  the 
natural  consequence  of  the  task  assigned  to  them. 
Without  going  further  into  the  matter,  which  would  be 
out  of  place  here,  it  may  suffice  to  remark  that  the  three 
fundamental  forms  of  the  existence  of  society  shown 
above  in  connection  with  the  fundamental  concepts  of 
law  (p.  347  ff.,  under  c),  viz.,  social  property,  social  obliga- 
tions, and  protection  against  crimes  dangerous  to  the 
community,  were  placed  in  Rome  essentially  under  the 
care  of  the  aediles.  In  certain  cases  they  actually  inter- 
fered, for  example  in  obstructions  of  the  public  thorough- 
fare, by  in  person  removing  the  obstruction;^^  in  others 

'^  The  well-known  case  of  Claudia  (Gellius  10,  6).  It  is  not  with- 
out importance  in  the  discussion  of  principles  because  an  authority 
like  Th.  Mommsen,  "Rom.  Staatsrecht,"  II,  p.  461,  wanted  to  bring 
it  under  the  concept  of  "a  crime  directed  immediately  against  the 
State,"  in  which  case  the  entire  conception  above  given  of  the 
province  of  the  aediles  would  be  changed. 

^' See  the  complete  presentation  in  Th.  Mommsen,  "Staatsrecht," 
pp.  461^91. 

99  D  43.  8.  2-24;  43.  10.  2.  The  well-known  case  of  18.  6.  12  and  13, 
"Lectos  emptos,  cum  in  via  publica  positi  essent,  aedilis  concidit." 


§12]      SOCIAL  MECHANICS— COERCION        379 

they  gave  an  order  to  the  private  person  to  undertake  the 
necessary  measures,  and  the  order  was  followed  by  the 
infliction  of  a  "multa"'*"'  in  case  of  disobedience.  In 
other  cases  still  they  issued  edicts  of  their  own,^''^  and 
finally  in  all  grave  offences  they  came  before  the  "comi- 
tia  tributa"  themselves  with  a  motion  for  a  fine.  This 
fine  had  not  the  significance  of  a  criminal  charge,  as  was 
the  case  in  the  "comitia  centuriata,"  but  was  a  proposi- 
tion of  "compositio,"  i.e.,  of  redeeming  the  guilty  from 
punishment  by  means  of  money. 

The  moneys  which  they  realized  in  this  way  were  not 
delivered  to  the  State  treasury  ("aerarium"),  and  were 
not  collected  by  the  fiscal  officials  of  the  State,  the 
quaestors,  as  was  the  case  with  the  property  of  those  who 
committed  an  offence  against  the  State,  but,  in  accord- 
ance with  the  social  character  of  their  office,  the  aediles 
themselves  collected  them  and  used  them  in  the  interests 
of  society,  by  providing  therewith  the  expenses  of  the 
public  games,  roads,  buildings,  monuments,  etc.  The 
crime  committed  against  society  was  to  be  made  good  to 
society. 

Thus  the  standpoint  of  society  is  seen  to  accompany 
us  throughout  the  aedile  ministration.  I  have  not  found 
a  single  point  in  which   it  is    wanting.^"^     The    other 

"•"  D.  43.  10.  1  §  1  "...  .  multent  eos,  quousque  firmos  fecerint 
(parietes)."  Ibid.  §  3,  "construat  vias  publicas  unusquisque  secun- 
dum propriam  domum." 

^"^  "Actiones  aediliciae,"  to  which  belongs  also  the  criminal  action 
in  21.  1.  40-42. 

^"2  Mommsen,  "Staatsrecht,"  p.  463,  misses  in  the  criminal  func- 
tion of  the  aediles  the  connection  with  their  province  in  other  matters, 
especially  in  the  case  of  "by  far  the  greatest  number  of  crimes." 
He  thinks  therefore  that  it  must  be  conceived  as  "a  province  quite 
distinct  from  the  rest  of  their  official  activity."  I  for  my  part 
know  of  no  case  in  which  the  point  of  view  established  by  me  of 
social  crimes  (p.  372)  dangerous  to  the  general  welfare,  does  not  hold 
good. 


380  THE   CONCEPT   OF   PURPOSE    [Ch.  viii 

magistrates,  with  the  exception  of  the  censors,  have 
nothing  to  do  with  society.  If  we  want  to  characterize 
briefly  the  legal  tasks  of  all  the  Roman  magistrates  in 
accordance  with  our  point  of  view  of  the  subject  in  whose 
behalf  they  exercised  their  functions,  we  may  say  that  the 
subject  of  the  consuls  is  the  State  on  its  political  and  mili- 
tary side;  of  the  quaestors  likewise  the  State,  but  on 
its  economic  side;  of  the  tribunes,  the  plebs;  of  the  prae- 
tors, the  individual,  so  far  as  it  concerns  the  protection 
of  his  private  legal  claims  (to  which  according  to  the 
Roman  conception  belong  also  delictual  actions  and 
"actiones  populares");  of  the  censors  and  the  aediles, 
society.  If  the  officials  are  not  equal  to  their  tasks,  then 
the  State  suffers  in  the  consuls;  the  treasury  ("aerarium") 
in  the  quaestors;  the  plebeians  in  the  tribunes;  the 
individual  in  the  praetors,  and  society  in  the  censors 
and  aediles. 

I  have  now  reached  the  end;  not  merely  the  end  of 
my  discussions  of  the  subject  in  the  purpose  of  the  law, 
but  the  end  of  my  whole  development  of  the  concept  of 
law.  We  began  with  the  formal  element,  i.e.,  the  exter- 
nal form  of  the  law.  To  this  we  added  later  the  content 
or, — since  the  entire  content  of  the  law  is  determined  by 
the  purpose,  —  the  purposing  element.  We  have  thus 
been  led  to  the  exhaustive  definition  of  law  with  which 
we  now  close  our  whole  investigation. 

Law  is  the  sum  of  the  conditions  of  social  life  in  the 
widest  sense  of  the  term,  as  secured  by  the  power  of  the 
State  through  the  means  of  external  compulsion. 

We  now  leave  the  standpoint  of  society,  which  we 
have  held  and  had  to  hold  till  now  in  order  to  present 
the  content  or  teleological  element  of  the  law,  and  turn 
our  attention  to  the  individual.  Society  is  nothing  more 
than  the  sum  of  the  individuals;  and  even  though,  in 
order  to  present  the  significance  of  law  as  a  part  of  the 


U3]      SOCIAL  MECHANICS  — COERCION       381 

whole  order  of  human  things,  we  may  look  away  from  the 
individual  and  substitute  the  community  for  it,  still  it 
is  after  all  the  individual  upon  whom  the  law  exerts  its 
activity;  it  is  for  his  benefit,  and  it  is  upon  him  that  its 
limitations  are  laid.  Is  the  individual  reimbursed  for 
the  limitations  to  which  he  submits  in  the  interest  of 
society,  by  the  advantages  which  the  latter  offers  him? 
The  following  exposition  shall  give  the  answer  to  this 
question.  Its  purpose  is  to  settle  accounts  between  the 
individual  and  society  in  reference  to  the  regulations  of 
the  law,  by  placing  credit  and  debit  in  parallel  columns. 

We  shall  begin  with  the  price  which  the  individual  must 
pay  in  order  to  partake  of  the  advantages  of  the  law. 
I  call  it  the  pressure  of  the  law  upon  the  individual. 

§  13.  The  Pressure  of  the  Law  upon  the  Individual. 
The  progress  in  the  development  of  the  State  and  the 
law  is  a  continuous  increase  in  the  demands  which  both 
make  of  the  individual.  Society  becomes  ever  more 
covetous  and  pretentious.  Every  satisfied  desire  bears 
the  germ  of  a  new  one.  But  every  new  purpose  which 
is  added  on  the  list  of  social  purposes  to  those  already 
existing  magnifies,  with  the  measure  of  labor  power  and 
money  which  it  requires,  the  contribution  demanded 
of  the  individual.  And  as  this  contribution,  whether 
it  consists  in  personal  service  or  in  money,  must  be  secured 
by  force,  there  is  also  increased  the  strain  put  upon  the 
social  apparatus  of  force  for  the  purposes  of  society. 
This  is  most  plainly  evident  and  most  deeply  felt  in  the 
budget.  The  enormous  increase  which  it  has  experienced 
in  our  century,  and  which,  as  far  as  can  be  foreseen,  will 
keep  on  growing,  has  its  ground  and  justification  (in 
so  far  as  it  is  not  merely  a  consequence  of  the  increase 
in  the  price  of  goods  and  labor  power),  in  the  recognition 
that  our  present  society  can  no  longer  be  satisfied  with 
the  aims  and  problems  which  were  sufficient  for  the  past ; 


382  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

that  it  needs  more  and  has  more  to  do  than  its  prede- 
cessor. Every  new  step  in  its  course  brings  new  social 
problems.  But  every  important  problem  is  indicated 
in  the  State  budget  in  millions. 

However  high  or  however  low  we  may  estimate  the 
duty  of  the  individual  to  contribute  to  the  charges  of 
the  State,  every  one  must  say  to  himself,  I,  too,  for  my 
part  contribute  to  the  purposes  of  society;  and  were 
the  contribution  ever  so  small,  I  participate  by  means 
of  it  in  all  the  expenses  of  the  State.  There  is  no 
expense  for  which  the  contribution,  perhaps  only  the 
millionth  part  of  a  penny,  could  not  be  calculated  pre- 
cisely. This  assertion  is  just  as  certain  as  the  one  we 
made  above  (p.  171), that  in  the  price  of  a  cup  of  coffee 
which  a  person  drinks,  or  of  a  cigar  which  he  smokes, 
he  must  pay  all  the  costs  needed  in  its  production.  The 
administrators  of  the  public  revenue  have  solved  the 
problem  of  making  all  persons  and  things  tributary  to 
the  purposes  of  society.  They  stretch  out  their  hands 
everywhere,  and  as  there  is  scarcely  a  person  who  does 
not  have  to  pay  his  contribution  in  form  of  an  income 
tax,  an  industrial  tax  or  a  head  tax,  so  there  is  scarcely 
a  thing  from  which,  before  it  comes  into  the  hands  of  the 
consumer,  the  State  or  the  municipality  has  not  deducted 
its  share  in  advance. 

But  what  have  taxes  to  do  with  law,  you  will  ask? 
Very  much.  The  obligation  to  pay  taxes  is  synonymous 
with  the  duty  of  the  citizen  to  assist  as  far  as  he  can 
in  the  pursuit  and  the  furtherance  of  all  the  purposes 
of  society  for  which  the  taxes  are  used.  In  place  of 
every  item  in  the  budget  of  expenditure  we  may  put 
down  the  rule  of  law:  "You  are  legally  bound  to  con- 
tribute to  this."  The  expense  budget  of  the  State 
or  the  municipality  resolves  itself  into  as  many  legal 
rules  as  it  has  items.     Every  one  says  to  you,  contribute 


§13]      SOCIAL  MECHANICS  — COERCION        383 

to  this  item.  It  is  your  duty  to  support  the  army 
and  the  fleet,  to  build  streets,  to  provide  for  schools 
and  universities,  etc.  With  every  new  purpose  which 
arises  in  the  system  of  the  administrative  authorities 
you  get  a  new  obligation,  and  the  expense  budget  of 
the  State  or  of  the  political  and  ecclesiastical  com- 
munity tells  you  for  what  purposes  society  makes  these 
claims  upon  you. 

In  taxes  you  see  what  society  costs  you  in  cash  money. 
But  there  are  besides  the  personal  services  which  it 
requires  of  you,  viz.,  the  duty  (in  Germany)  of  military 
service,  which  costs  you  a  few  years  of  your  life,  and 
if  there  is  a  war,  may  cost  you  your  life  or  your  limbs; 
service  on  the  jury  and  other  services  besides.  Then 
there  are  the  police  and  criminal  laws,  which  prescribe 
to  you  the  paths  to  which  you  must  hold  in  order  not 
to  come  in  conflict  with  the  authorities  of  the  State. 

Now,  you  will  say,  I  have  finally  done  with  society. 
What  remains  now  belongs  to  me  alone.  Society  can 
not  interfere  in  the  sphere  of  my  private  rights;  here 
her  empire  ends  and  mine  begins.  Here  is  the  point 
where  I  can  say  to  her,  so  far  and  no  further. 

If  we  might  expect  to  see  this  demand  realized  in  any 
law  in  the  world,  it  would  have  to  be  the  old  Roman  law, 
for  there  never  was  any  other  law  that  conceived  the 
principle  of  individual  independence  so  clearly  and 
consciously,  and  carried  it  out  so  energetically  and  in  so 
extensive  a  manner  as  the  Roman. ^"^  Let  us  hear  what 
is  its  attitude  to  that  demand. 

"You  have  "patria  potestas"  over  your  children,  a 
power  such  as  no  other  people  knows,"  says  the  old 
Roman  law  to  the  father,  "but  you  must  not,"  it  adds 
forthwith,  "sell  your  children  as  slaves.  They  remain 
free  citizens  even  if  you  should  make  the  attempt  to  sell 

'"'  See  my  "Geist  des  romischen  Rechts,"  II,  pp.  133-218. 


384  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

them,  and  I  place  a  limit  even  upon  your  right  to  sell 
them  into  servitude  ("mancipium").  If  you  transgress 
this  limit,  you  lose  your  right  of  power  over  them  by 
reason  of  your  abuse  of  it,  for  your  children  are  not  only 
for  you,  they  are  also  for  themselves  and  for  the  com- 
munity, which  cannot  use  citizens  who  have  been  accus- 
tomed to  slavish  obedience. 

"Your  property  belongs  to  you,  do  with  it  as  you  like 
while  you  live.  Your  egoism  is  my  guarantee  that  you 
will  guard  and  take  care  of  it.  But  if  you  are  frivolous 
enough  to  squander  it,  I  will  place  you  under  the  care 
of  a  guardian  as  a  spendthrift  ("cura  prodigi") ;  for  your 
property  is  not  only  for  you,  but  also  for  those  who 
belong  to  you.^°*  After  your  death  it  falls  to  them.  If 
you  want  to  exclude  them,  lay  your  reasons  before  the 
people,  and  they  will  decide  whether  they  are  valid  or 
j^Q^  105  Yqij  must  do  the  same  thing  if  you  want  to  put 
yourself  under  the  paternal  power  of  another,  for  the 
people  lose  an  independent  citizen  thereby,  and  they 
have  to  see  whether  it  is  agreeable  to  their  interests." 

Our  present  law  has  increased  considerably  these  legal 
limitations  upon  the  individual  in  the  interest  of  society. 

Let  us  take  as  an  example  the  relations  of  parents  to 
their  children.  Even  before  the  child  is  born,  society 
stretches  forth  its  hand  for  it,  protecting  and  desiring 
it.  "The  child  which  you  bear  in  your  body,"  the  law 
says  to  the  mother,  "belongs  not  to  you  alone,  but  also 
to  society.  Woe  to  you  if  you  interfere  with  its  rights" 
(abortion,  exposure).  When  the  child  is  born,  the  law 
imposes  as  a  permanent  duty  the  obligation  to  support 

*"*  D.  28.  2.  11.  ".  .  .  quiet  iam  vivo  patre  quodammodo  domini 
existimantur." 

105  "Testamentum  in  comitiis  calatis."  Concerning  the  guarantee 
which  this  form  gave  to  children  to  their  right  of  succession,  see  my 
"Geist  des  R.  R."  Ill,  1,  p.  147  (4th  ed.). 


5  13]      SOCIAL  MECHANICS— COERCION        385 

it;  as  a  temporary  duty,  compulsory  report  of  its  birth 
(until  recently  also  compulsory  baptism) ;  then  a  little 
later  compulsory  vaccination,  and  when  the  child  is 
grown  up,  compulsory  education.  The  law  sets  limits 
to  the  abuse  of  the  right  of  chastisement;  similarly  to 
the  right  of  exploiting  the  child  by  putting  it  in  factories 
(maximum  number  of  hours  of  labor,  age).  The  judge 
gives  his  consent  to  the  marriage  which  is  arbitrarily 
refused  by  the  parent,  and  in  cases  of  necessity  he  even 
forces  the  parents  to  provide  the  daughter  with  a  dowry. 

In  spite  of  these  limitations,  the  right  of  parents  over 
their  children  is  still  more  extensive  today  than,  it  seems 
to  me,  is  consonant  with  the  nature  of  the  relation  and 
the  degree  of  civilization  of  our  present  society.  It  is 
perhaps  the  sorest  spot  of  our  entire  private  law  today 
and  I  am  firmly  convinced  that  in  the  distant  future 
there  will  be  a  change  here,  and  the  moral  neglect  of 
children  in  houses  which  are  breeding  places  of  vice  and 
crime  will  be  prevented  by  putting  them  into  public 
homes.  Of  what  avail  is  it  to  fight  vice  and  crime  if  we 
leave  their  breeding  places  open  ?  Resistance  and  struggle 
against  the  two  must  pursue  them  into  the  home;  and 
I  doubt  not  that  this  conviction  will  one  day  gain  ground 
and  will  overcome  the  false  timidity  which  still  keeps 
us  back  today  from  interfering  in  the  home  and  the 
rights  of  parents.  To  be  sure,  a  mighty  transformation 
must  take  place  in  legal  opinion  before  this  can  happen, 
and  it  will  require  perhaps  thousands  of  years.  In 
reality  the  change  would  not  be  greater  than  that  from 
the  power  of  the  Roman  parent  to  the  limitations  above 
mentioned  which  our  law  imposes  upon  him,  and  which 
would  have  scarcely  appeared  in  a  different  light  to  an 
ancient  Roman  than  those  I  anticipate  for  the  future. 

If  the  idea  that  a  right  exists  exclusively  for  the  per- 
son entitled  is  to  be  verified  in  any  institution  of  private 


386  THE  CONCEPT  OF  PURPOSE    [  Ch.  VIII 

law,  it  could  only  be  property,  and  this  is  as  a  matter  of 
fact  the  prevailing  conception.  Jurists  and  laymen 
agree  in  the  view  that  the  essence  of  property  consists 
in  the  unlimited  control  of  the  owner,  and  that  ever>' 
restriction  is  essentially  an  encroachment  upon  it,  which 
is  incompatible  with  the  idea  of  the  institution.  How  is 
this?  My  view  is  that  this  conception  is  fundamentally 
wrong.  The  relation  of  property  to  society  is  subject 
to  the  same  conditions  as  that  of  the  family.  The  onl>- 
reason  that  the  demands  of  society  are  not  so  evident 
in  property  is  the  circumstance  that  the  proprietor's 
own  interest  determines  him  as  a  rule  to  use  his  property 
in  such  a  way  as  will  further  the  interest  of  society  along 
with  his  own.  The  same  thing  is  true  here  as  in  our 
mixed-legal  conditions  of  social  life  (p.  337),  i.  e.,  there  is 
no  need  of  law  because  his  own  advantage  and  pleasure 
lead  a  person  in  the  right  path  without  any  other  stimu- 
lus. But  suppose  there  were  large  tracts  of  arable  land 
lying  uncultivated,  and  weeds  grew  where  corn  might 
grow,  or  that  whole  stretches  of  land  were  withdrawn 
from  cultivation  and  given  over  to  hunting,  should 
society  look  quietly  on?  In  later  Roman  imperial  times 
it  often  happened  that  On  account  of  the  enormous  burden 
of  land  tax,  owners  allowed  their  lands  to  lie  desolate. 
If  the  land  existed  only  for  the  owner,  the  Roman  gov- 
ernment would  have  had  to  endure  this  quietly  as  a 
consequence  of  the  concept  of  property.  But  the  land 
exists  also  for  society,  that  it  may  bear  fruit,  and  there- 
fore they  did  not  endure  it ;  but  they  offered  the  estate 
to  one  who  was  willing  to  cultivate  it  and  make  it  use- 
ful for  society.^"^  A  garden  on  the  street  is  an  impro- 
priety in  a  large  city,  for  the  site  is  intended  for  a  house 

*°*  Cod.  11.  58.  8.  The  rest  does  not  belong  here.  The  title 
contains  besides  a  series  of  other  ordinances  calculated  to  secure  the 
cultivation  of  estates.     It  signifies  a  complete  misunderstanding  of 


§131      SOCIAL  MECHANICS  — COERCION        387 

and  not  for  a  garden.  Appreciating  this  point  of  view 
many  systems  of  law  offer  the  owner  the  alternative  of 
building  up  the  ground  himself  or  of  selling  it  for  a  fair 
price  to  one  who  volunteers  to  do  it.  Another  example 
is  found  in  the  law  of  mining  in  connection  with  the  free- 
dom of  prospecting.  Society  has  an  interest  in  bringing 
the  treasures  of  the  ground  to  the  surface.  If  the  owner 
neglects  to  do  this,  the  law  gives  the  right  to  anyone  else 
who  is  ready  to  do  so  to  "burrow"  and  to  "search. "^"^ 

The  limitations  mentioned  so  far  refer  altogether  to 
immovable  property.  In  respect  to  movable  property, 
the  law  did  not  consider  it  necessary  to  secure  legally  its 
use  in  the  interest  of  society.  The  prohibition  of  cruelty 
to  animals  is  no  objection  to  our  view,  for  its  ground  is 
not  the  consideration  that  the  animal  is  used  in  a  manner 
opposed  to  the  economic  interest  of  society  (for  in  that  case 
the  uneconomic  use  of  other  things  would  have  to  be 
forbidden  also),  but  the  ethical  point  of  view  (see  Vol. 
II).  The  only  danger  to  society  that  might  arise  from 
misuse  of  property  in  movable  things  would  be  their 
destruction,  which  would  mean  their  effective  loss  to 
society,  but  it  is  secured  against  this  danger  by  the  inter- 

the  meaning  of  that  constitution  to  try  to  explain  it  on  the  basis 
of  the  idea  of  "dereHctio"  (abandonment).  The  motive  was  the 
pubHc  interest,  "ad  privatum  pariter  publicumque  compendium 
excolere."  It  is  from  a  similar  consideration  that  a  tumble-down 
house,  which  on  the  refusal  of  one  of  the  joint  owners  was  repaired  on 
his  own  account  by  the  other,  is  made  over  to  him,  D.  17.  2.  52  §  10. 
Suetonius,  "Vespas."  ch.  8,  tells  of  a  temporary  measure  of  the 
same  tendency,  "Deformis  urbs  veteribus  incendiis  ac  ruinis  erat, 
vacuas  areas  occupare  et  sedificare,  si  possessores  cessarent,  cuicumque 
permisit."  The  lax  landowner  was  in  ancient  times  reminded  c  f  his 
duties  to  society  by  the  censor.    Cell.  4,  12. 

"'This  is  already  the  case  in  Roman  law.  See  Cod.  11.  6,  "De 
Metallariis."  In  1  of  the  same  place  the  same  point  of  view  is 
emphasized  as  in  Cod.  8  of  the  preceding  note,  "sibi  et  rei  puhlicae 
commoda  compararet." 


388  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

est  of  the  owner  himself.  That  the  owner  squanders 
his  fortune  is  (apart  from  the  loss  to  his  next  of  kin, 
p.  384)  indififerent  to  society,  it  only  passes  into  other 
hands,  but  its  constituent  parts  are  preserved  for  society. 
The  contrary  is  possible  only  in  testamentary  disposi- 
tion. It  is  conceivable  that  a  miser,  who  grudges  every- 
body everything  after  his  death  just  as  he  did  in  life, 
might  direct  in  his  will  that  his  documents  and  valuables 
should  be  put  in  his  grave  or  be  destroyed.  From  the 
standpoint  of  the  individualistic  conception  of  property 
such  a  disposition  would  have  to  be  carried  out,  but 
natural  feeling  will  tell  everyone  that  this  cannot  be 
allowed,  and  so  the  Roman  law  decides,  too.'"^  Not 
because  there  is  no  room  in  a  will  for  anything  except 
the  institution  of  heirs  and  legacies  (for  the  testator 
can  make  any  kind  of  regulations  besides  that  he  pleases) , 
but  solely  and  simply  because  such  a  disposition  would 
oppose  the  social  destination  of  property.  Goods  belong 
to  man  and  not  to  the  worms.  The  necessity  of  bequeath- 
ing is  based  upon  the  same  principle.  The  law  knows 
no  form  of  excluding  an  heir.  The  property  which  a 
man  loses  by  death  must  fall  to  man  again. ^"^ 

"®  D.  11.7. 14  §5.    "Non  autem  oportet  ornamenta  cum  corporibus 
cordi  nee  quid  aliud  hujusmodi,  quod  homines  simplicioresfaciunt." 

^"•The  Remans  emphasize  this  idea  by  saying  that  the  inheri- 
tance belongs  to  the  present  generation.  The  testator  must  choose  his 
heir  among  those  who  are  living  at  the  time,  he  cannot  skip  over  his 
generation  and  assign  his  property  to  a  succeeding  one.  For  the 
same  reason  the  addition  of  a  "dies  ex  quo"  in  the  institution  of  an 
heir  is  not  valid;  the  testator  can  neither  deprive  the  present  of  its 
right,  nor  can  he  restrict  it.  The  only  privilege  he  has  is  to  choose 
his  heir  among  the  individuals  already  living  (or  conceived)  at  the 
tirre  of  his  death.  To  be  sure  he  can,  by  the  addition  of  conditions, 
effect  a  delay  in  the  accession  to  the  inheritance,  but  —  and  here  the 
above  idea  comes  out  again — even  before  the  condition  comes  in 
force,  the  inheritance  is  assigned  to  the  person  entitled  provisionally 
("Bonorum  possessio  secundum  tabulas").  The  dead  cannot  restrict 
the  living. 


§13]      SOCIAL  MECHANICS  — COERCION        389 

It  is  therefore  not  true  that  property  involves  in  its 
"idea"  the  absolute  power  of  disposition.  Property 
in  such  a  form  society  cannot  tolerate  and  never  has 
tolerated.  The  "idea"  of  property  cannot  contain 
anything  which  is  in  contradiction  with  the  "idea"  of 
society.""  This  standpoint  is  a  last  remnant  of  that 
unhealthy  conception  of  the  Law  of  Nature  which  iso- 
lated the  individual  as  a  being  all  apart.  It  needs  no 
proof  to  show  where  it  would  lead  to  if  an  owner  could 
retire  to  his  property  as  to  an  inaccessible  fortress. 
The  resistance  of  a  single  person  would  prevent  the  con- 
struction of  a  public  road  or  a  railway;  the  laying  out 
of  fortifications  —  works  upon  which  may  depend  the 
well-being  of  thousands,  the  prosperity  of  an  entire 
province,  perhaps  the  safety  of  the  State.  If  he  said, 
"The  house,  the  land,  the  cattle,  the  horses  are  mine," 
society  would  have  to  look  on  helplessly  upon  the  rav- 
ages of  fire,  water,  disease;  and  in  case  of  war,  men 
would  have  to  pull  the  cannons  if  there  were  no  horses 
to  be  bought.  The  principle  of  the  inviolability  of 
property  means  the  delivery  of  society  into  the  hands  of 
ignorance,  obstinacy  and  spite;  into  the  hands  of  the 
meanest  and  most  frivolous  egoism  of  the  individual  — 
"Let  everything  go  to  ruin,  as  long  as  I  have  my  house, 

""  I  am  glad  to  have  found  now  the  above  view,  which  I  had 
already  expressed  in  my  "Geist  des  R.  R."  I,  p.  7,  in  the  brief  for- 
mula, "There  is  no  property  which  is  independent  of  consideration 
for  society"  (with  which  compare  the  discussions  in  Vol.  II),  expressed 
by  Adolf  Wagner,  in  his  "Allgemeine  oder  theoretische  Volkswirts- 
schaftslehre,"  Part  I  (Leipzig  and  Heidelberg,  1876),  p.  499  et  seq. 
in  an  exposition  which  in  my  opinion  leaves  nothing  to  be  desired; 
and  I  gladly  make  use  of  this  opportunity  to  express  to  this  writer 
my  fullest  and  warmest  agreement.  I  know  of  no  work  in  which  the 
fundamental  conception  of  the  social  function  of  law  has  been  de- 
veloped so  carefully,  uniformly  and  convincingly  as  in  his;  with 
what  success  the  future  will  show. 


390  THE   CONCEPT   OF   PURPOSE    [Ch.  VI ii 

my  land,  and  my  cattle."  But  will  you  really  have  it, 
you  short-sighted  fool?  The  dangers  that  threaten 
everybody  threaten  you  also.  The  flood,  the  fire,  the 
epidemic,  the  enemy,  will  overtake  you  also;  in  the  gen- 
eral ruin  you  will  also  be  buried.  The  interests  of  society 
are  really  your  own;  and  if  the  latter  interferes  with 
your  property  and  puts  restrictions  upon  you,  it  is  done 
for  your  sake  as  much  as  for  the  sake  of  society  (see 
below). 

The  limitations  of  property  just  touched  upon  reduce 
themselves  to  the  so-called  social  right  of  inevitable 
necessity  of  which  we  spoke  above  (p.  317).  The  jurist 
knows  that  there  are  many  others  besides,  which  have 
as  their  purpose  not  the  interest  of  society,  but  of  a 
single  person.  Does  it  contradict  the  idea  of  property- 
to  demand  sacrifices  from  the  owner  in  favor  of  other 
persons  who  do  not  concern  him?  The  answer  to  this 
question  will  remove  the  last  remnant  of  the  problemati- 
cal in  the  theory  of  property-,  which  our  investigation 
so  far  has  left. 

An  avalanche  has  covered  the  way  to  my  land,  or  the 
river  has  flooded  it.  The  only  access  still  remaining 
leads  through  the  land  of  my  neighbor.  What  shall 
happen  now?  The  Roman  law  obliges  him  to  give  me 
a  way  in  return  for  compensation  (way  of  necessity). 

A  person  used  another  man's  stones  in  building  the 
foundation  of  his  house,  thinking  they  were  his  own. 
After  the  building  is  finished,  the  owner  appears  and 
claims  his  stones.  How  shall  the  judge  decide?  If 
we  are  to  carry  out  the  idea  of  property  to  its  last  con- 
sequences, the  entire  structure  would  have  to  be  de- 
stroyed to  get  out  the  stones,  or  the  defendant  would 
have  to  come  to  terms  with  the  plaintiff,  and  in  view 
of  the  critical  situation  in  which  he  is  placed,  would  be 
forced  to  pay  him  perhaps  a  thousand  times  the  value 


§13]      SOCIAL  MECHANICS  — COERCION       391 

of  the  stones.  According  to  the  Roman  law  the  judge 
awards  the  plaintiff  double  the  value  of  the  stones  ("act. 
de  tigno  juncto").  Even  if  the  defendant  stole  the 
stones,  the  judge  does  not  decide  to  take  them  out,  but 
imposes  a  higher  amount. 

In  both  cases  it  is  not  a  question  merely  of  the  interest 
of  a  single  party,  but  also  of  that  of  society.  If  the 
owner  cannot  get  access  to  his  estate,  he  cannot  cultivate 
it  and  it  will  not  bear  him  any  more  fruit.  The  damage 
will  affect  not  only  him  but  society  as  a  whole,  for  the 
sum  total  of  national  production  is  thereby  diminished. 
If  the  house  is  torn  down  to  take  out  the  stones,  a  valuable 
product  of  labor  is  completely  destroyed  to  no  purpose, 
and  the  man  himself  perhaps  will  go  to  ruin  along  with 
the  house.  If  property  exists  solely  for  the  owner,  the 
loss  which  society  must  suffer  in  both  cases  can  be  no  reason 
for  limiting  it.  But  if  it  exists  also  for  society,  the  law 
must  try  to  reconcile  the  interests  of  the  two.  This  is 
done  in  all  such  cases  by  means  of  expropriation  or  by 
putting  an  injunction  upon  the  exercise  of  one's  rights. 

The  meaning  of  expropriation  is  completely  misunder- 
stood in  my  opinion  by  those  who  see  in  it  an  interference 
with  the  rights  of  property,  an  abnormality  which  is  in 
opposition  to  the  "idea"  of  property.  It  can  appear  in 
this  light  only  to  him  who  views  property  solely  from 
the  standpoint  of  the  individual  (individualistic  theory 
of  property) . 

But  this  standpoint  is  no  less  false  for  property  than 
for  contract."'  The  only  correct  one  is  the  social  {social 
theory  of  property) .  From  this  standpoint  expropriation 
far  from  appearing  as  an  abnormality,  or  as  offending 
against  the  idea  of  property,  is  on  the  contrary  peremp- 
torily demanded  by  the  latter.  Expropriation  solves 
the  problem  of  harmonizing  the  interests  of  society  with 
'"  See  the  arguments  on  the  binding  force  of  contracts,  p.  201. 


392  THK   CONCEPT   OP^   PURPOSE    [Ch.  VI 1 1 

those  of  the  owner.  Only  by  means  of  it  is  property 
made  a  practicable  and  feasible  institution.  Without 
it  property  would  become  the  curse  of  society,  and  that 
too  not  only  in  the  case  of  general  necessity,  but  also  in 
that  of  the  individual.  The  former  is  met  by  the  expro- 
priation of  public  rights,  the  latter  by  the  expropriation  of 
private  rights. 

The  last  concept  is  virtually  unknown  to  modern 
theory,  although  it  is  expressed  distinctly  enough  in 
Roman  law.  From  the  application  which  the  Romans 
made  of  it,  it  is  clear  that  they  were  fully  aware  of  the 
dangers  which  a  regardless  realization  of  the  abstract, 
formalistic  concept  of  property  (absolute  mastery  of  the 
thing)  contains.  In  reference  to  the  legal  protection 
of  property  the  Romans  combine  two  methods:  actual 
realization  of  property,  and  money  payment.  Roman 
procedure  grants  the  judge  the  power  to  decide  for  the 
actual  restitution  of  the  thing  without  giving  him  the 
authoiity  of  enforcing  it  ("arbitrium  de  re  restituenda"). 
In  case  of  disobedience  of  the  order,  the  judge  is  merely 
directed  in  his  final  sentence  ("sententia")  to  condemn 
the  defendant  in  money,  which  is  practically  equivalent 
to  expropriation.  In  this  regulation  the  Roman  law 
gave  the  realization  of  property  an  elasticity  which 
excluded  entirely  the  dangers  accompanying  the  attempt 
to  follow  out  rigidly  the  consequences  of  property  and 
realize  them  absolutely — -the  dangers  of  property  as  I 
might  call  them.  And  it  enabled  the  judge  at  the  same 
time,  in  estimating  the  amount  to  be  paid,  to  do  com- 
plete justice  to  the  party  expropriated,  by  paying  due 
regard  to  his  position  (function  of  money  as  equivalent), 
as  well  as  to  the  possible  unreasoning  resistance  of  the 
opponent  (penal  function  of  money).  I  see  in  this 
arrangement  one  of  the  most  ingenious  ideas  of  Roman 
procedure. 


§13]      SOCIAL  MECHANICS— COERCION        393 

Of  what  practical  value  the  possibility  of  this  money 
payment  was  and  to  what  horrible  result  an  action  "rei 
vindicatio"  must  lead  which  would  make  it  its  task  to 
realize  absolutely  the  individualistic  theory  of  property, 
the  reader  may  be  convinced  by  the  following  case. 

In  building  a  house  the  boundary  was  exceeded  a  few 
inches.  After  the  house  is  built,  his  neighbor,  who  with 
malicious  purpose  perhaps  looked  on  quietly  while  the 
house  was  building,  brings  a  possessory  action  ("act, 
negatoria")  against  him.  How  shall  the  judge  decide? 
According  to  the  textbooks  of  our  modern  Roman  law 
he  would  have  to  decide  to  have  the  wall  set  back,  i.  e., 
to  destroy  the  entire  house.  According  to  my  opinion 
the  outcome  in  this  case  was  that  the  judge  condemned 
the  defendant  to  pay  the  value  of  the  strip  of  land,  i.  e., 
the  latter  was  expropriated  by  him.  In  this  way  the 
house  was  saved  and  the  opponent  received  compensation 
for  the  lost  strip  of  land.  If  the  latter  wanted  to  prevent 
this  he  had  to  move  as  long  as  it  was  still  time,  i.  e., 
he  had  to  raise  a  protest  when  the  building  operations 
began  ("operis  novi  nuntiatio"),  and  in  that  case  the 
latter  had  an  injunction  put  upon  them.  This  is  surely 
the  most  intelligent  solution  of  the  problem. ^^^ 

But  it  is  solved  at  the  expense  of  the  law,  the  legal 
rigorist  will  tell  me,  and  purely  in  favor  of  expediency. 
In  this  objection  is  expressed  the  fundamental  differ- 
ence which  exists  between  the  prevailing  conception  of 
law  and  my  own,  and  which  I  shall  not  be  able  to  settle 
scientifically  until  the  second  part.     According  to  my 

^^2  I  stand  quite  alone  in  the  opinion  ("Jahrbiicher,"  VI,  p.  99) 
that  this  is  valid  also  for  our  modern  law.  Whether  my  opponents 
made  clear  to  themselves  the  above  consequence,  and  whether  they 
would  be  sufficiently  masters  of  themselves  to  apply  their  theory  in 
practice  as  judges,  I  should  like  to  be  allowed  to  doubt.  In  any  case 
the  confidence  of  the  people  in  jurisprudence  would  likely  be  con- 
siderably shattered  by  such  a  judgment. 


394  THE   CONCEPT   OF    PURPOSE    [Ch.  vill 

theory,  utility  forms  the  sole  concern  of  the  law.  What 
is  opposed  to  this  as  legality  ("ratio  juris")  is  simply  the 
deepest  and  firmest  stratum  of  the  expedient,  deposited 
in  the  law  (p.  330). 

As  a  second  instance  of  the  application  of  the  idea  of 
expropriation  in  private  law  I  name  "adjudicatio"  in 
procedure  in  partition.  The  authority  given  by  the 
praetor  to  the  judge  to  adjudicate  ("adjudicato")  was 
synonymous  with  the  right  to  expropriate,  and  the 
point  of  view  by  which  the  judge  had  to  be  guided  in  this 
is  expressly  designated  by  the  jurists  as  utility}^^ 

But  the  case  of  expropriation  is  not  the  only  one  in 
which  the  above  point  of  view  is  proved,  viz.,  that  the 
rigid  consequences  of  individualistic  property  must 
yield  to  the  social  interest.  Other  instances  are  found  in 
"usucapio"  and  "accessio."  In  the  former  the  Roman 
jurists  themselves  emphasize  the  point  of  view  of  the 
public  interest  as  the  deciding  one.  The  interest  of  the 
owner,  they  say,  must  yield  in  this  case  to  that  of  soci- 
ety."^ By  "accessio,"  they  understand  the  case  of  an 
adherence  of  another's  thing  to  one's  own.  I  planted 
another's  tree  in  my  land.  The  owner  demands  it  back. 
Must  I  pull  it  out  again?  The  answer  of  Roman  law  is, 
as  long  as  it  has  not  yet  taken  root,  yes;  after  it  has  taken 
root,  no.  Why  is  this?  The  reason  with  which  the 
jurist  satisfies  himself,  viz.,  that  in  the  latter  case  the 

^'^  So,  for  example,  for  the  "act.  finium  regundonim,"  I,  4.  17. 
§  6,  .  .  .  "commodius,"  D.  10.  1.2  §  1 ;  for  the  "act.  familiae  erciscun- 
dae"  10. 2.  3,  .  .  .  "incommoda" ;  for  the  "act.  communi  dividundo" 
10.  3.  6  §  10,  7  §1,  19  §  1,  ibid.  21,  "quod  omnibus  utilissimum." 
Cod.  ibid.  3.  Z7.  1  .  .  .  "commode."  A  modem  example,  unknown  to 
the  Romans,  of  private  law  expropriation  is  found  in  parcelling  out  a 
farm  for  the  rotation  of  crops. 

"*  D.  See  41.  3.  1,  where  the  two  are  placed  in  opposition  to  each 
other.  '  bono  publico  usucapio  introducta  est,  cum  sufficeret  dominis," 
etc. 


§13]      SOCIAL  MECHANICS  — COERCION        395 

tree  has  become  a  constituent  part  of  the  land,  has  dis- 
appeared as  an  independent  thing,  and  therefore  its 
ownership  is  extinguished, — is  not  appropriate,  for  there 
is  no  doubt  that  the  tree  may  nevertheless  be  separated 
from  the  land.  And  if  it  were  the  task  of  the  law  to 
carry  out  the  idea  of  property  to  its  fullest  consequences, 
then,  if  the  owner  desired  it,  its  separation  would  have 
to  be  carried  out  even  if  the  tree  died  as  a  result  —  "fiat 
justitia,  pereat  arbor."  But  the  tree  is  saved  for  the 
same  reason  that  the  house  is  saved  into  which  another's 
material  has  been  built,  and  for  the  same  reason  that 
the  possessor  of  an  object  belonging  to  another  and 
claimed  by  its  true  owner  must  not  destroy  the  expendi- 
tures made  in  it,  if  he  has  no  advantage  therefrom,  or  if 
the  former  is  disposed  to  compensate  him  for  the  advan- 
tage he  may  have.  The  reason  is  because  the  economic 
result  for  the  one  party  would  be  altogether  out  of  pro- 
portion to  that  of  the  other.  The  tree,  the  house,  the 
tapestried  wall,  the  constructed  hearth,  is  preserved, 
and  the  other  party  is  paid  ofT  with  money.  The  law 
stands  in  the  way  of  property,  which,  to  maintain  itself, 
would  destroy  the  object, — either  by  prohibiting  its 
exercise,  or  by  taking  away  its  ownership  and  awarding 
it  to  the  opponent,  i.e.,  by  expropriating  it. 

This  is  Roman  property  in  its  true  form,  and  every  one 
is  now  in  a  position  to  form  an  idea  concerning  it  and  to 
judge  whether  it  gives  any  support  to  the  .current  con- 
ception, which  has  found  its  scientific  expression  and 
sanction  in  the  usual  definition  of  the  jurist,  that  property 
is  the  complete  legal  mastery  of  a  thing.  I  was  not  con- 
cerned in  rectifying  an  erroneous  conception  about  a 
Roman  institution,  but  in  withdrawing  from  the  indi- 
vidualistic conception  of  law  the  support  which  it  is  sup- 
posed to  have  in  this  institution. 

The  content  of  the  entire  discussion  from  page  383  on 


396  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

may  be  condensed  in  one  word,  viz.,  in  the  idea  of  the 
social  character  of  private  rights.  All  rights  of  private 
law,  even  though  primarily  having  the  individual  as 
their  purpose,  are  influenced  and  bound  by  regard  for 
society.  There  is  not  a  single  right  in  which  the  sub- 
ject can  say,  this  I  have  exclusively  for  myself,  I  am 
lord  and  master  over  it,  the  consequences  of  the  con- 
cept of  right  demand  that  society  shall  not  limit  me. 
One  need  not  be  a  prophet  to  recognize  that  this  social 
conception  of  private  law  will  continually  gain  ground 
over  the  individualistic.  There  will  come  a  time  when 
property  will  bear  another  form  than  it  does  at  present ; 
when  society  will  no  more  recognize  the  alleged  right  of 
the  individual  to  gather  together  as  much  as  possible 
of  the  goods  of  this  world,  and  combine  in  his  hand 
a  landed  possession  upon  which  hundreds  and  thousands 
of  independent  farmers  might  live,  than  it  recognizes 
the  right  of  life  and  death  of  the  ancient  Roman  father 
over  his  children,  or  the  feudal  right,  the  highway  rob- 
bery of  the  knight,  and  the  law  of  salvage  of  the  middle 
ages.  Private  property  and  the  right  of  inheritance 
will  always  remain,  and  the  socialistic  and  communistic 
ideas  directed  to  its  removal  I  regard  as  vain  folly.  But 
we  must  have  little  confidence  in  the  skill  of  our  financial 
artists  if  we  think  they  can  not  succeed,  through  in- 
creased taxes, — income,  inheritance,  sumptuary  and 
other  taxes,- — -in  exerting  a  pressure  upon  private  prop- 
erty which  will  prevent  an  excess  of  its  accumulation  at 
single  points  and  which,  by  diverting  the  surplus  into 
the  State  treasury,  will  make  it  possible  to  lighten  the 
pressure  upon  the  other  parts  of  the  social  body.  This 
will  bring  about  a  distribution  of  the  goods  of  this  world 
more  in  accord  with  the  interests  of  society,  i.e.,  more 
just  (p.  274  flf.)  than  has  been  and  must  be  effected  under 
the  influence  of  a  theory  of  property  which,  if  it  is  to  be 


§13]      SOCIAL  MECHANICS— COERCION        397 

called  by  its  right  name,  is  the  insatiability  and  voracious- 
ness of  egoism.  The  name  which  it  applies  to  itself  is 
"sacredness  of  property,"  and  the  very  men  to  whom 
nothing  else  is  sacred,  the  miserable  egoist,  whose  life 
has  not  a  single  act  of  self-denial  to  show,  the  crass 
materialist,  who  respects  only  what  he  can  grasp  with 
his  hands,  the  pessimist,  who  in  the  feeling  of  his  own 
nothingness,  carries  his  worthlessness  over  into  the  world, 
—  all  these  are  at  one  on  the  sacredness  of  property;  for 
property  they  invoke  an  idea  which  otherwise  they  know 
not;  which  they  mock  and  in  reality  trample  under 
foot. 

But  egoism  has  always  known  how  to  unite  God  and 
holiness  to  its  purposes.  When  the  law  governing  sal- 
vage was  still  in  force,  there  was  a  passage  in  the  prayer 
of  the  Church  which  read,  "God  bless  our  strand,"  and 
the  Italian  bandit  recites  an  Ave  Maria  before  he  goes 
out  to  rob. 

I  have  drawn  up  the  account  of  the  individual,  as  I 
have  promised.  It  says,  you  have  nothing  for  yourself 
alone,  everywhere  society  or,  as  the  representative  of  its 
interests,  the  law,  stands  by  your  side.  Everywhere 
society  is  your  partner,  desiring  a  share  in  all  that  you 
have;  in  yourself,  in  your  labor  power,  in  your  body,  in 
your  children,  in  your  fortune.  Law  is  the  realized 
partnership  of  the  individual  and  society.  Wherever 
you  are,  you  are  surrounded  by  the  law,  society's  invisible, 
omnipresent  representative,  as  by  the  atmospheric  air, 
and  you  can  no  more  find  a  spot  in  society  where  the 
law  does  not  follow  you,  than  you  can  find  a  spot  on 
the  earth  where  there  is  no  air.  It  is  habit  alone  which 
brings  it  about  that  in  most  cases  you  do  not  feel  at  all 
the  pressure  which  it  exerts  upon  you.  As  a  matter  of 
habit  you  move,  without  being  conscious  of  it,  in  the 
paths  which  the  law  marks  out  for  you,  and  it  is  onl>' 


398  THE   CONCEPT  OF   PURPOSE    [Ch.  VIII 

where  error,  haste,  or  passion  carries  you  away  that  you 
become  aware,  in  the  resistance  which  the  law  offers 
to  you,  of  the  Hmits  within  which  it  restrains  you. 
Conscious  reflection  is  necessary  to  become  aware  of 
all  the  limitations  with  which  law  in  a  civilized  people 
has  surrounded  individual  freedom. 

And  must  we  still  be  continually  prepared  for  new 
restrictions?  Must  the  claims  of  society,  as  is  alleged, 
keep  on  increasing  (p.  381)?  Is  there  not  a  point  where 
the  individual  may  exclaim,  "Enough  of  pressure,  now, 
I  am  weary  of  being  the  beast  of  burden  of  society. 
There  must  be  a  limit  between  me  and  it,  beyond  which 
it  must  not  interfere  in  my  affairs:  a  sphere  of  freedom 
which  belongs  to  me  exclusively,  and  which  society 
must  respect"? 

Here  I  touch  upon  a  question  of  the  highest  funda- 
mental importance,  the  question  of  the  limits  of  the 
State  and  the  law  over  against  the  sphere  of  individual 
freedom.  I  touch  upon  it  not  because  I  believe  I  can 
solve  it,  but  simply  because  the  sequence  in  my  develop- 
ment of  the  concept  of  law  puts  it  in  my  way  and  I 
cannot  avoid  it. 

For  me  it  denotes  the  closing  point  of  this  develop- 
ment, the  "so  far  and  no  further."  The  formula  in 
which  I  comprehended  above  (p.  51)  the  relation  of  the 
individual  to  society,  viz.,  "every  one  exists  for  himself, — 
every  one  exists  for  the  world,  —  the  world  exists  for 
every  one,"  does  not  afford  us  the  least  answer  to  this 
question.  For  the  latter  is  not  concerned  with  the 
that,  it  wants  to  know  how  far  the  individual  exists  for 
society;  but  the  above  formula  gives  not  the  slightest 
information  on  this  matter.  Shall  we  ever  succeed  in 
determining  clearly  this  "how  far"  ?  I  doubt  it.  Accord- 
ing to  my  opinion  the  matter  will  always  be  fluid.  As 
society  progresses,  and  purposes  and  requirements,  ever 


§13]       SOCIAL  MECHANICS— COERCION        399 

newly  produced,  attach  themselves  to  it  irresistibly,  the 
idea  of  the  debt  which  the  individual  owes  society  will 
keep  pace  with  it.  Standing  upon  a  relatively  very  low 
stage  in  comparison  with  the  immeasurable  future 
which  lies  before  us,  we  cannot  at  all  see  the  end. 

These  doubts  of  mine  concerning  the  solubility  of  the 
problem,  far  from  being  shaken  by  the  attempts  which 
have  been  undertaken  so  far  to  solve  it,  have  on  the  con- 
trary been  confirmed  by  them.  I  know  only  of  two  such 
attempts.  They  bear  the  names  of  two  of  the  most  impor- 
tant thinkers  of  our  century,   Wilhelm  von  Humboldt 
and  John  Stuart  Mill,  both,  as  I  think,  equally  influenced 
by  the  fundamental  error  of  the  (individualistic)  doc- 
trine of  the  Law  of  Nature  in  vogue  in  the  last  century, 
that  the  State  and  society  can  be  built  up  from  the 
standpoint  of  the  individual.     In  the  theory  of  the  Law 
of  Nature  the  individual  is  the  cardinal  point  of  the 
whole  law  and  the  State.     According  to  it  the  individual 
exists  for  himself  alone,  an  atom  without  any  other 
purpose  in  life  than  that  of  maintaining  itself  alongside 
of  the  innumerable  other  atoms.     To  be  able  to  do  this 
it  gets  along  with  them  according  to  the  Kantian  for- 
mula of  the  compatibility  of  one's  own  freedom  with 
that  of  others.    The  State  and  the  law  merely  have  the 
task  of  realizing  this  formula,  i.e.,  of   preventing  the 
encroachment  of  the  freedom  of  one  upon  the  sphere  of 
the  freedom  of  the  other,  —  a  dividing  off  of  the  spheres 
of  freedom  in  the  manner  of  cages  in  a  menagerie;  that 
the  wild  beasts  may  not  tear  each  other  to  pieces.   With 
this  purely  negative  relation  all  that  is  necessary  is 
attained ;  apart  from  this  these  individuals  have  nothing 
to  do  with  each  other.     The  State  and  the  law  have 
solved   their  problem  completely  with   the  cordon  of 
safety  which  they  drew  about  them. 

It  is  the  system  of  individualism  in  law,  which  we 


400  THE   CONCEPT   OF    PURPOSE    (Ch.  VIII 

have  already  met  above  (p.  201)  in  connection  with  the 
question  of  the  binding  force  of  contracts;  the  construc- 
tion of  the  moral  world  from  the  standpoint  of  the  indi- 
vidual regarded  as  an  isolated  being  and  referring  the 
whole  purpose  of  his  existence  to  himself;  the  idea  that 
every  one  exists  for  himself  and  nobody  exists  for  the 
other. 

From  the  standpoint  of  this  conception,  Wilhelm  von 
Humboldt  ^^  demands  of  the  State  that  it  "shall  not 
interfere  in  the  private  affairs  of  the  citizens  any  further 
than  to  prevent  the  injury  of  the  rights  of  one  by  the 
other"  (p.  16).  It  must  not  limit  their  rights  any 
further  "than  is  necessary  in  order  to  secure  them  against 
themselves  and  external  enemies"  (p.  39).  Everything 
else  is  an  evil,  hence,  in  particular,  "its  eflforts  to  raise 
the  positive  well-being  of  the  nation,  its  whole  care  for 
the  population  of  the  land,  the  support  of  the  inhabi- 
tants, partly  in  a  direct  way  by  means  of  institutions  for 
the  poor,  partly  in  an  indirect  way  by  furthering  agri- 
culture, industry  and  commerce;  its  financial  and  coin- 
ing operations,  prohibitions  of  import  and  export,  all 
arrangements  for  guarding  against  or  restoring  injuries 
of  nature,  in  short  every  institution  of  the  State  which 
has  as  its  purpose  to  conserve  or  further  the  physical 
welfare  of  the  nation.  All  these  arrangements  have 
injurious  consequences  and  are  incompatible  with  true 
politics,  which  proceeds  from  the  highest  but  always 
human  points  of  view"  (p.  18).  Nor  should  the  State 
concern  itself  about  marriage,  but  leave  it  simply  to  the 
free  choice  of  the  individuals  and  the  autonomic  regula- 
tion by  contract  (p.  29).     Even  public  acts  of  immorality 

*"■  In  his  work,  "Ideen  zu  einem  Versuch,  die  Grenzen  der  Wirk- 
samkeit  des  Staates  zu  bestimmen"  (Breslau,  1851),  which  was 
written  in  the  preceding  century,  but  was  not  published  until  after 
his  death. 


§13]      SOCIAL  MECHANICS— COERCION        401 

must  not  be  forbidden,  for  "nobody's  rights  are  in  them- 
selves injured  by  them,  and  the  other  person  is  free  to 
oppose  his  own  strength  of  will  and  reasons  to  the  evil 
impression"  (p.  108).  The  State  must  "absolutely  re- 
frain from  endeavoring  to  influence  directly  or  indirectly 
the  morals  or  character  of  the  nation.  All  special  charge 
of  education,  religious  institutions,  sumptuary  laws, 
etc.,  lies  absolutely  outside  the  limits  of  its  activity" 
(p.  110).  Every  one  must  guard  against  deceit  himself 
(p.  111).  If  he  consents,  all  crime  against  him  is  ex- 
cluded, and  even  "the  murder  of  another  with  his  con- 
sent must  remain  unpunished,  unless  the  too  likely 
possibility  of  dangerous  abuse  should  make  a  criminal 
law  necessary  in  this  latter  case"  (p.  139). 

Thus  all  restrictions  which  the  historical  State  put 
about  individual  freedom  are  torn  down,  with  the  only 
exception  of  those  which  are  inevitably  demanded  for 
the  security  of  mutual  rights.  The  only  thing  the  indi- 
vidual cannot  attain  with  his  own  powers  is  the  security 
of  his  rights  (p.  45),  and  for  this,  and  only  for  this  is 
there  need  of  union  in  the  State.  The  latter  is  "only  a 
subordinate  means,  to  which  the  true  end,  man,  must 
not  be  sacrificed"  (p.  104). 

"Man,  i.  e.,  the  individual,  as  the  true  end"  —  in 
these  few  words  the  whole  view  is  characterized.  The 
thought  that  man  exists  also  for  others,  that  society 
which  has  made  him  a  real  man  also  has  a  claim  upon 
him  and  can  demand  of  him  that  he  should  help  to 
further  its  purposes  as  it  has  helped  further  his,  —  this 
thought  which  the  most  superficial  observation  of  life 
brings  before  one  constantly  and  in  actual  realization, 
is  altogether  foreign  to  the  entire  book. 

But  in  justice  to  the  great  thinker,  whom  we  have 
thus  seen  gliding  down  the  steep  path  of  an  aprioristic 
construction  of  the  State  and  the  law  widely  diverging 


402  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

from  historical  reality,  we  must  add  that  the  aim  which 
he  has  before  his  mind  is,  despite  all  the  devastations 
which  he  must  carry  out  on  the  way  thither,  after  all  an 
ideal  one.  It  is  not  low,  insipid  egoism  which  he  intends 
to  establish  thereby,  but  freedom  as  a  means  of  the  high- 
est and  harmonious  development  of  all  the  powers  of 
man.  "That  upon  which  the  whole  greatness  of  man 
finally  rests,  and  which  the  individual  man  must  always 
struggle  to  attain,  ...  is  individuality  of  power  and 
education.  This  individuality  is  brought  about  by  freedom 
of  action  and  the  diversity  of  the  agent;  and  it  in  turn 
produces  them"  (p.  11).  "The  highest  ideal  of  the 
existence  of  human  beings  together  is  in  my  mind  that 
in  which  every  one  develops  only  from  himself  and  for 
the  sake  of  himself"  (p.  13).  "True  reason  can  wish  man 
no  other  condition  than  that  in  which  not  merely  every 
one  enjoys  the  most  unrestrained  freedom  to  develop 
himself  from  himself  through  his  individuality,  but 
where  physical  nature  also  receives  no  other  form  from 
human  hands  than  that  which  every  individual  involun- 
tarily and  by  himself  gives  it  in  accordance  with  his 
needs  and  inclination,  limited  only  by  the  boundaries 
of  his  power  aad  his  right"  (p.  15). 

Upon  such  freedom  all  his  hopes  are  based.  The 
men  who  are  educated  in  its  school  will  do  of  their  own 
accord  all  that  ordinarily  the  State  forces  them  to  do. 
They  will  unite  of  their  own  free  will  to  ward  off  great 
catastrophes,  famine,  flood,  etc.  (p.  44).  They  will,  of 
their  own  free  will,  further  the  purposes  of  the  State, 
"for  they  will  find  all  the  motives  thereto  in  the  idea  of 
the  use  which  the  regulations  of  the  State  will  afford 
them  in  attaining  their  individual  aims"  (p.  76).  "The 
State  can  even  abstain  from  positive  regulations  of  edu- 
cating the  nation  for  war.  Training  of  the  citizens  in 
the  use  of  arms  is  the  only  thing  that  is  absolutely 


§13]       SOCIAL  MECHANICS— COERCION        403 

necessary,  but  patriotism  will  imbue  them  with  such 
virtue  as  will  not  merely  bring  out  in  them  the  bravery, 
readiness  and  subordination  of  the  soldier,  but  will 
inspire  them  with  the  spirit  of  true  warriors;  or  rather 
of  noble  citizens  who  are  always  ready  to  fight  for  their 
fatherland"  (p.  53).  Such  is  the  conception  of  the 
citizen  he  was  able  to  form. 

We  must  not  forget  that  it  was  not  the  mature  states- 
man Wilhelm  von  Humboldt  who  wrote  this,  but  the 
young  man,  not  yet  thirt]f  years  old,  with  the  warm 
pulsation  of  enthusiasm  for  all  that  was  noble  and 
beautiful,  and  a  complete  faith  in  the  spring  of  national 
freedom  which  seemed  to  have  dawned  with  the  French 
Revolution.  The  mature  man  Humboldt  kept  the 
work  from  publication.  No  one  was  in  a  better  position 
than  he  to  observe  the  enormous  gulf  which  separated 
the  dream  of  his  youth  from  reality. 

The  case  is  quite  different  with  the  attempt  which 
John  Stuart  Mill  undertook  in  his  work  on  Liberty  "^  to 
assign  the  law  its  limits.  For  this  is  the  effort  of  a  ripe 
mind,  and  between  him  and  Humboldt  lies  a  period  long 
and  fruitful  in  political  experiences.  An  entire  revolu- 
tion in  political  science  lay  between:  from  the  political 
and  legal  individualism  of  the  Law  of  Nature  to  the 
enlightened  understanding  of  the  real  historical  State 
and  law  as  revealed   to  history  and   science  in  recent 

"®  (H.  M.  Caldwell  Co.,  New  York,  s.  a.)-  The  author  directs  his 
attacks  not  only  against  law,  but  also  against  custom  and  public 
opinion;  and  anyone  who  knows  what  unjustifiable  pressure  the 
latter  exerts  in  the  land  of  the  author  in  many  things  which  are  of 
a  purely  external  and  conventional  nature  (II,  p.  375),  and  have 
not  the  least  to  do  with  ethics,  will  not  only  fully  comprehend  the 
resistance  which  he  thereto  opposes,  but  will  recognize  this  as  highly 
meritorious  in  him.  For  our  consideration,  exclusively  concerned 
with  law,  this  side  of  his  polemic  against  the  existing  order  does  not 
come  in  question  at  all. 


404  THE   CONCEPT   OF   PURPOSE    [Ch.viii 

times.  The  authority  which  the  name  of  Mill  rightly 
enjoys  makes  it  doubly  necessary  to  characterize  in  its 
true  form  the  erroneous  doctrine  which,  clothed  with  it, 
attempts  to  question  our  entire  social  order.  And  I 
beg  the  reader  to  permit  me  for  th's  reason  to  treat  this 
matter  with  a  degree  of  detail  which  I  should  decidedly 
not  have  allowed  myself  in  the  case  of  a  less  important 
opponent.  ^^'' 

The  formula  which  Mill  sets  up  for  the  attitude  of  the 
law  toward  the  individual  is  essentially  the  same  as  that 
of  Humboldt.  It  is  as  follows:  "The  sole  end  for 
which  mankind  are  warranted,  individually  or  collec- 
tively, in  interfering  with  the  liberty  of  action  of  any  of 
their  number*,  is  self-protection  .  .  .  The  only  purpose 
for  which  power  can  be  rightfully  exercised  over  any 
member  of  a  civilized  community,  against  his  will,  is  to 
prevent  harm  to  others.  His  own  good,  either  physical 
or  moral,  is  not  a  sufficient  warrant.  .  .  .  The  only 
part  of  the  conduct  of  any  one,  for  which  he  is  amenable 
to  society,  is  that  which  concerns  others.  In  the  part 
which  merely  concerns  himself,  his  independence  is,  of 
right,  absolute"  (p.  21). 

The  formula  maintains  that  there  are  two  ways  of 
exercising  individual  freedom.  One  is  where  the  efifects 
are  confined  exclusively  to  the  agent,  the  other  is  where 
they  extend  also  to  others —  I  use  instead  of  this  my  own 
expression,  society.  If  the  latter  are  injurious  in  their 
nature,  the  legislator  is  authorized  to  prohibit  such  use 
of  liberty.     In  the  first  case  he  is  not. 

But  all  acts  of  sufficient  meaning  to  make  it  worth  our 
while  raising  this  question  at  all  extend  in  their  effects 

"^  In  England  also  Mill  met  with  decided  opposition.  See  espe- 
cially the  work  of  James  Fitzjames  Stephen,  "The  Watchwords 
Liberty,  Equality,  Fraternity." 


5  131      SOCIAL  MECHANICS— COERCION        405 

to  others.  Always  are  others  affected,"^  and  this  is 
the  only  reason  why  society  takes  any  notice  of  the 
acts.  I  know  of  no  example  of  a  legal  rule  which  has 
as  its  purpose  to  force  an  individual  against  his  own  will 
in  his  own  interest  for  his  good.  Where  it  appears  to 
do  so,  it  is  always  in  the  interest  of  society.  Securing 
the  good  of  the  individual  is  not  an  end  in  itself,  it  is 
only  a  means  to  the  end  of  securing  the  good  of  society. 
Society  is  not  concerned  in  preventing  the  primary 
injurious  effect  upon  the  subject,  but  in  preventing  the 
secondary  effect  upon  itself.  If  we  grant  it  the  absolute 
power,  as  Mill  does,  to  resort  to  self-protection  through 
the  law  in  case  of  such  injury,  then  it  is  all  over  with 
individual  freedom.  Armed  with  this  formula  I  promise 
so  to  compress  and  tight-lace  it  that  it  will  not  have  the 
power  to  move.  If  the  father  squanders  his  money, 
do  not  the  children  suffer?  And  when  the  children 
become  a  charge  upon  the  poor-box,  does  not  society 
suffer?  Surely  it  does.  Hence  I  forbid  prodigality. 
But  not  this  alone,  I  forbid  also  stock-jobbing,  all  daring 
speculations,  every  extravagant  expenditure;  in  short,  I 
bring  the  entire  control  of  a  man's  property  under  police 
superintendence.  If  the  parents  affect  the  children  by 
their  bad  example,  do  not  the  latter  suffer?  If  the  hus- 
band becomes  a  drunkard,  and  ill-treats  his  wife  and 
children  and  refuses  to  work ;  if  the  wife  becomes  dissolute 
and  neglects  the  home,  do  not  the  husband  and  children 
suffer?  Certainly.  This  circumstance  is  sufficient  to 
open  to  the  police  an  entrance  into  the  interior  of  the 

"^  Mill  himself  recognizes  this  fact  in  one  place  in  his  book  (p. 
133  f .),  "No  person  is  an  entirely  isolated  being;  it  is  impossible  for 
a  person  to  do  anything  seriously  or  permanently  hurtful  to  himself, 
without  mischief  reaching  at  least  to  his  near  connections,  and  often 
far  beyond  them."  But  he  neglects  to  draw  therefrom  the  conclu- 
sion to  his  theory. 


406  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

house,  and  to  place  the  moral  Hfe  as  well  as  the  economic 
under  surveillance. 

But  if  a  man  is  quite  alone  in  the  world,  without  wife 
or  child,  has  he  not  then  at  least  the  right  to  ruin  himself? 
Has  he  the  right  to  sell  himself  as  a  slave?  Mill  himself 
forbids  it.  Why?  "By  selling  himself  for  a  slave,  he 
abdicates  his  liberty;  he  foregoes  any  future  use  of  it 
beyond  that  single  act.  He  therefore  defeats,  in  his 
own  case,  the  very  purpose  which  is  the  justification  of 
allowing  him  to  dispose  of  himself"  (p.  171).  Freedom 
is  therefore  dependent  upon  the  permission  of  society. 
But  in  that  case  the  latter  is  also  authorized  not  merely 
to  forbid  complete  renunciation  thereof,  but  also  to 
lay  down  its  partial  measure  and  aim,  and  this  authority 
society  has  indeed  always  claimed.  But  not  for  the 
sake  of  the  logic  of  the  concept  of  freedom,  —  the  law 
of  logical  contradiction,  as  Mill  says,  because  "the  prin- 
ciple of  freedom  cannot  require  that  he  should  be  free 
not  to  be  free.  It  is  not  freedom,  to  be  allowed  to 
alienate  his  freedom"  (p.  172),  but  for  the  practical 
reason,  namely,  because  society  has  come  to  recognize 
that  slavery  is  incompatible  with  it.  The  standpoint 
of  the  logic  of  the  concept,  which  Mill  brings  to  bear  to 
avoid  the  last  consequence  of  individual  freedom,  viz., 
selling  oneself  as  a  slave,  takes  us  much  further  than  he 
can  venture  to  admit  according  to  his  theory.  For  what 
is  true  of  the  whole  must  also  be  true  of  a  part.  But 
every  contract  contains  a  partial  renunciation  of  freedom. 
And  what  is  true  of  freedom  must  also  be  true  of  life, 
which  is  the  condition  of  it.  Can  we  not  maintain  in 
respect  to  life  the  same  thing  that  Mill  says  of  freedom? 
"The  idea  of  life  implies  that  one  has  it.  It  is  not  life 
if  one  renounces  it." 

The  law  punishes  duelling  and  homicide  committed 
with  the  consent  of  the  subject.     According  to  Mill's 


§13]      SOCIAL  MECHANICS— COERCION        407 

theory  there  should  be  no  punishment  since  the  persons 
involved  give  their  consent. 

Has  legislation  a  right  to  fix  the  maximum  hours  of 
labor?  Has  it  the  right,  according  to  the  theory  of 
freedom,  to  prevent  the  laborer  if  he  wishes  to  shorten 
his  life  by  excessive  labor?  Mill  dlso  agrees  with  this 
legal  measure,  the  introduction  of  which  will  always 
redound  to  the  credit  of  the  enlightened  and  practical 
sense  of  his  countrymen.  He  approves  of  the  provisions 
for  the  protection  of  the  health  of  the  workmen  and  for 
their  safety  in  dangerous  works.  But  the  reason  he 
assigns,  —  "the  principle  of  individual  liberty  is  not 
involved  here"  (p.  159), —  is  again  of  such  a  nature  that 
his  whole  theory  can  be  lifted  by  it  out  of  its  hinges.  For 
if  the  prohibition  to  work  as  much  and  a^  little  as  I  please 
does  not  constitute  an  interference  with  my  personal  free- 
dom, where  does  such  interference  begin?  It  is  a  peculiar 
picture  of  freedom  that  is  composed  of  the  particular 
examples  which  Mill  cites.  "The  laws  which,  in  many 
countries  on  the  Continent,  forbid  marriage  unless  the 
parties  can  show  that  they  have  the  means  of  supporting 
a  family  do  not  exceed  the  legitimate  powers  of  the 
State  ,  .  .  they  are  not  objectionable  as  violations  of 
liberty"  (p.  181).  "If  either  a  public  officer  or  any  one 
else  saw  a  person  attempting  to  cross  a  bridge  which 
had  been  ascertained  to  be  unsafe,  and  there  were  no 
time  to  warn  him  of  his  danger,  they  might  seize,  him 
and  turn  him  back,  without  any  real  infringement  of 
his  liberty;  for  liberty  consists  in  doing  what  one  desires, 
and  he  does  not  desire  to  fall  into  the  river"  (p.  160). 
I  ask,  does  the  frivolous  person,  the  lover  of  pleasure, 
desire  to  ruin  himself?  He  only  wishes  to  enjoy  his  life, 
hence  he  can  also  be  prevented  without  an  infringement 
of  his  liberty.  And  suppose  the  man  on  the  bridge 
really  wants  to  take  his  own  life,  can  he  still  be  seized 


408  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

without  an  infringement  of  his  hberty?     A  man  who  is 
penetrated  by  the  respect  for  freedom  would  first  have 
to  ascertain  his  real  purpose  before  restraining  him. 
"If,  either  from  idleness  or  from  any  other  avoidable 
cause,  a  man  fails  to  perform  his  legal  duties  to  others, 
as  for  instance  to  support  his  children  [I  add  another 
example,  payment  of  debts  and  public  duties],  it  is  no 
tyranny  to  force  him  to  fulfil  that  obligation,  by  com- 
pulsory labor,  if  no  other  means  are  available"  (p.  163). 
So  the  lazy  should  be  put  in  institutions  of  compulsory 
labor !    And  this  too  on  the  platform  of  liberty !   ' '  Drunk- 
enness," says  Mill  (p.  163),  "in  ordinary  cases,  is  not  a 
fit  subject  for  legislative  interference;  but  I  should  deem 
it  perfectly  legitimate  that  a  person  who  had  once  been 
convicted  of  any  act  of  violence  to  others  under  the 
influence  of  drink,  should  be  placed  under  a  special  legal 
restriction,  personal  to  himself;    that  if  he  were  after- 
wards found  drunk,  he  should  be  liable  to  a  penalty,  and 
that  if  when  in  that  state  he  committed  another  ofifence, 
the  punishment  to  which  he  would  be  liable  for  that 
other  ofTence  should  be  increased  in  severity."     A  young 
man  breaks  a  window  in  a  state  of  intoxication.     Hence- 
forth, according  to  Mill,  a  special  law,  issued  personally 
for  him,  dogs  his  footsteps,  follows  him  as  long  as  he  lives, 
and  stands  as  a  spectre  behind  his  chair  at  every  joyful 
feast. 

And  now  again  we  see  his  strange  sensitiveness  to 
liberty  in  reference  to  Free  Trade.  "The  restrictions  of 
the  sale  of  poisons  and  the  prohibition  of  the  importa- 
tion of  opium  into  China  are  infringements  on  the  liberty 
of  the  buyer,  because  they  make  it  impossible  or  diffi- 
cult to  obtain  a  particular  commodity"  (p.  159).  So  the 
Chinese  government  has  not  the  right  to  prohibit  the 
opium  trade?  It  must  stand  idly  by  with  folded  arms 
and  look  on  while  the  nation  is  ruining  itself  physically 


§14]      SOCIAL  MECHANICS— COERCION        409 

and  morally,  simply  out  of  academic  respect  for  liberty, 
in  order  not  to  violate  the  inherent  right  of  every  China- 
man to  buy  whatever  he  pleases?  Will  Mill  censure  the 
English  government  for  prohibiting  the  importation  of 
cattle  from  a  country  where  there  is  an  epidemic  on 
cattle,  in  order  to  prevent  contagion  of  the  cattle  at 
home?  And  the  Emperor  of  China  should  not  be  allowed 
to  do  in  the  interest  of  man  what  England  does  in  that 
of  cattle? 

The  fine  shipwreck  which  two  thinkers  like  Hum- 
boldt and  Mill  have  suffered  in  the  above  question  is 
not  due  to  their  own  fault,  but  to  the  insolubility  of  the 
problem.  If  one  steers  his  ship  upon  a  rock  to  force  a 
passage  through  it,  he  must  not  be  surprised  if  his  ship 
is  shattered.  We  keep  back  our  ship  because  we  have 
no  hope  of  the  possibility  of  a  passage.  Will  a  fortunate 
pilot  find  some  day  the  means  of  passing  through?  I 
do  not  believe  it.  Legislation  will,  in  the  future  as  in 
the  past,  measure  restrictions  of  personal  liberty  not 
according  to  an  abstract  academic  formula,  but  accord- 
ing to  practical  need. 

Having  shown  how  society  restricts  the  individual  in 
his  liberty  by  means  of  the  law,  let  us  now  show  what  it 
offers  him  in  return. 

§  14.  TheBenefit  of  the  State.  I  do  not  say  the  benefit 
of  the  law,  but  of  the  State.  The  demands  which  the 
State  makes  upon  the  individual  we  could  designate 
as  the  demands  of  the  law,  because  they  bear  the  form  of 
law,  but  we  cannot  do  this  in  reference  to  the  benefits 
of  the  State,  for  they  do  not  coincide  with  those  of  the 
law,  they  extend  far  beyond  it. 

He  who  wishes  to  settle  his  account  with  the  State 
must  be  careful  to  keep  the  following  two  questions 
distinct  from  each  other.  One  is,  do  I  get  a  correspond- 
ing equivalent  for  my  contribution;    is  the  service  I  do 


410  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlli 

the  State  paid  for  in  that  which  I  receive  from  it?  The 
other  is,  do  not  others  get  more  than  their  due  in  propor- 
tion to  me;  does  the  distribution  of  the  advantages  of 
poHtical  community  to  all  the  members  correspond  to  the 
principles  of  justice? 

He  who  answers  the  first  question  in  the  negative, 
either  condemns  the  State  as  such,  and  must,  if  he 
desires  to  be  consistent,  retire  from  political  community 
to  a  desert  island  or  the  primeval  forest;  or  his  charge  is 
directed  only  against  this  particular  State,  and  in  that 
case,  if  he  does  not  want  to  submit  without  resistance, 
he  must  either  endeavor  to  bring  about  a  change  of  the 
existing  political  and  legal  institutions  with  the  help  of 
those  who  think  like  him  and  the  means  at  his  com- 
mand, or  look  for  another  State  instead  of  the  one  in 
which  he  is.  The  last  two  alternatives  are  true  also  if 
he  answers  the  first  question  in  the  affirmative  and  the 
second  in  the  negative.  If  he  is  not  alone  in  this  judg- 
ment, if  it  is  the  feeling  of  the  entire  social  class  to  which 
he  belongs,  such  a  State  of  real  or  supposed  social  injus- 
tice leads  either  to  emigration  en  masse  like  the  attempts 
at  secession  of  the  plebeians  in  ancient  Rome,  or  to  the 
so-called  class  struggle,  like  the  struggles  of  the  plebeians 
against  the  patricians  in  Rome,  the  rise  of  the  peasants 
at  the  time  of  the  Reformation,  the  labor  movement  of 
the  present  day,  the  strikes  of  certain  classes  of  labor, 
etc.,  etc. 

The  following  investigation  has  to  do  exclusively 
with  the  first  question,  which  alone  permits  of  abstract 
treatment ;  whereas  the  second  can  be  answered  only  in 
reference  to  given  historical  conditions.  Only  so  much 
must  be  quite  generally  admitted  for  the  second  question 
also,  viz.,  that  there  have  not  been  wanting  examples 
in  history  of  the  kind  of  social  injustice  which  favors  one 
class  of  the  population  at  the  expense  of  the  other.     And 


§14]      SOCIAL  MECHANICS  — COERCION       411 

this  leads  me  again  to  an  objection  which  I  already 
raised  above  (p.  336)  against  my  definition  of  law  as  the 
sum  of  the  conditions  of  social  life  secured  by  compulsion, 
but  left  unanswered  in  that  place  to  be  disposed  of  in  the 
present  connection.  How  is  this  fact,  this  exploitation 
of  the  law  in  the  interest  of  a  particular  class,  compatible 
with  the  assertion  that  the  law  has  as  its  purpose  the 
conditions  of  life  of  society,  i.e.,  of  every  body? 

Let  us  suppose  a  strong  man  combining  with  a  weak 
one.  If  we  remove  in  thought  all  considerations  which 
may  restrain  his  egoism,  he  will  arrange  the  social  com- 
pact in  such  a  way  that  he  will  himself  get  the  lion's 
share  (the  so-called  "societas  leonina").  If  we  apply 
this  to  civil  society,  it  means  that  its  order  will  always 
correspond  to  the  relative  power  of  the  several  strata  or 
classes  of  which  it  is  composed.  When  the  victor  admits 
the  vanquished  nation  into  his  State,  he  will  not  give 
them  an  equal  station  with  himself,  but  will  reduce  them 
to  a  state  of  dependence.  In  the  same  way  the  more 
powerful  class  within  the  same  uniformly  growing  up 
people  will  give  expression  to  its  predominant  power  in 
the  regulations  of  the  law.  Unequal  rights  appear  here 
as  the  modus  vivendi  between  the  stronger  and  the 
weaker,  as  the  presupposition  upon  which  the  peaceful 
living  together  of  the  two  is  dependent.  And  it  is  the 
weak  one  who  has  the  most  vital  interest  not  to  shake  it, 
as  long  as  nothing  has  changed  in  the  relative  powers  of 
the  two  parties.  The  law  which  the  stronger  dictates 
to  him,  be  it  ever  so  hard,  constitutes,  however  para- 
doxical it  may  seem,  after  all  relatively  a  benefit  in  com- 
parison with  the  condition  which  would  be  awaiting 
him  if  it  were  wanting  —  the  benefit,  namely,  of  relative 
pressure  as  opposed  to  absolute.  The  measureless  self- 
will  of  the  powerful  is  still  always  possible,  yet  only  at 
the  price  of  violation  of  the  law,  and  we  have  shown 


412  THE   CONCEPT   OF   PURPOSE    (Ch.  Vlll 

above  (p.  264)  how  important  this  moral  element  is  even 
in  comparison  with  physical  force. 

Although  it  is  true  (p.  276f.)  that  justice  is  the  vital 
principle  of  society  and  hence  the  highest  purpose  which 
it  has  to  realize,  still  it  would  be  mistaken  to  refuse  to 
recognize  that  there  may  be  situations  in  the  life  of 
nations  when  social  injustice  may  have  a  temporary  and 
relative  justification  and  necessity,  like  so  many  other 
institutions  which  have  no  peripanent  justification,  as 
for  example,  slavery.  Better  slavery  than  slaughter  of 
the  enemy;  better  a  society  established  on  the  basis  of 
inequality  of  rights  than  bare  force  and  lawlessness. 
In  such  a  society  too  the  law  fulfils  the  function  I  assigned 
it,  viz.,  to  secure  the  conditions  of  social  life,  except  that 
the  latter  are  not  everywhere  the  same,  as  was  shown 
above  (p.  332). 

I  shall  now  return  to  the  first  question  mentioned 
above,  though  I  do  so  not  without  some  hesitation. 
There  are  questions  which  one  has  to  propose  in  the  sys- 
tematic connection  of  the  development  of  an  idea,  but 
which  one  is  almost  ashamed  to  answer,  because  the 
thing  is  self-evident.  The  above  question  is  of  this 
kind.     A  few  words  may  suffice. 

What  does  the  State  give  me?  If  we  confine  ourselves 
to  the  immediate  services  of  the  State,  and  leave  alto- 
gether out  of  consideration  its  indirect  significance  for 
the  development  of  social  life,  we  shall  have  to  distin- 
guish, I  think,  three  kinds. 

The  first  thing  the  State  gives  me  is  protection  against 
injury  from  without.  In  the  present  time  the  security 
of  this  good  takes  up,  as  is  well  known,  by  far  the  greatest 
part  of  the  national  strength,  personal  as  well  as  eco- 
nomic. In  comparison  with  the  amount  which  the 
individual  contributes  for  this  purpose  by  means  of  mili- 
tary service  and  that  portion  of  the  taxes  which  forms  his 


§141      SOCIAL  MECHANICS  — COERCION        413 

share  of  the  miUtary  budget,  all  other  services  he  has 
to  perform  are  scarcely  appreciable.  Of  all  goods 
which  a  nation  possesses  none  is  paid  for  so  dearly  as  the 
independence  of  the  State  on  an  external  power,  and  the 
permanence  of  nationality  secured  thereby.  No  nation 
that  feels  itself  such  has  ever  found  the  price  too  high. 
In  case  of  necessity  it  has  freely  offered  infinitely  greater 
sacrifices  than  the  State  demanded  from  it. 

The  second  good  is  protection  within  the  State,  namely, 
law.  There  is  no  good  which  costs  the  individual  so  little, 
after  it  has  been  once  acquired,  in  comparison  with  its 
incalculable  value,  as  the  security  of  rights.  Our 
ancestors  paid  the  dear  purchase  price  in  the  form  of 
hard-fought,  bloody  battles,  the  descendants  have  to  bear 
only  the  relatively  small  costs  of  maintenance. 

The  lowest  standard  by  which  we  may  measure  the 
value  of  this  good  is  the  economic,  the  money  value 
which  legal  security  has  for  property.  How  high  this  is 
in  money  is  shown  by  comparing  the  value  of  real  estate 
in  the  Christian  States  of  Europe  with  that  in  Turkey. 
If  legal  conditions  in  Turkey  could  attain  to  our  stand- 
ard, the  value  of  real  estate  would  at  once  increase  two- 
fold and  more.  And  even  within  the  European  civilized 
States,  the  fall  in  the  price  of  land  during  great  political 
upheavals  shows  what  share  the  security  of  rights  has 
in  the  sum  total  of  the  national  value  of  property. 
What  is  lost  at  such  times  is  to  be  placed  to  the  account  of 
the  law. 

And  yet,  how  insignificant  is  the  legal  security  of 
property  in  comparison  with  that  of  the  person.  To 
waste  words  on  this  point  would  mean  to  forget  for 
what  readers  this  work  of  mine  is  intended.  I  shall  only 
allow  myself  to  recall  two  remarks  made  above.  One 
concerns  (p.  287)  the  emphasis  of  the  ethical  significance 
of    legal    security    for    the    development    of    character, 


414  THE   CONCEPT   OF   PURPOSE    [Cii.  VIII 

the  other  (p.  343)  the  proof  of  the  value  of  criminal  law 
for  the  offender. 

The  third  good  which  the  State  gives  to  its  members 
consists  in  all  those  public  arrangements  and  plans 
which  it  brings  to  life  in  the  interest  of  society.  There 
seems  to  be  a  certain  amount  of  opposition  in  reference 
to  these.  What  benefit  does  the  peasant  derive  from 
universities,  libraries,  museums?  And  yet  he  must 
contribute  his  share,  be  it  ever  so  small  (p.  381).  But  if 
he  charges  these  institutions  to  the  scholar,  the  latter 
charges  him  with  those  devoted  to  his  interests,  and  for 
which  the  scholar  must  pay  his  contribution.  And 
then,  how  insignificant  are  these  contributions,  and  how 
valuable  they  prove  ultimately  for  the  whole  of  society, 
and  hence  also  for  him!  The  agricultural  chemistry  of 
Liebig  has  done  the  most  valuable  services  to  agricul- 
ture. It  originated  in  the  laboratory  of  the  University 
of  Giessen  supported  at  the  expense  of  the  State.  In  the 
observatory  of  the  University  of  Goettingen,  Gauss  and 
Weber  made  the  first  experiments  with  the  electro- 
magnetic telegraph.  The  economic  value  of  the  tele- 
graph, as  developed  today  for  trade  and  commerce, 
mocks  all  computation.  Have  these  two  institutions 
paid  for  themselves? 

But  enough!  It  needs  not  science  to  enlighten  the 
thinking  person  of  the  measure  in  which  he  finds  his 
benefit  in  the  State;  it  is  sufficient  to  open  one's  eyes  to 
become  aware  of  it.  But  it  is  demanding  too  much 
of  the  unthinking  masses  to  expect  them  to  do  this.  If 
you  hear  their  complaints  about  the  burdens  and  restric- 
tions which  the  State  imposes,  you  might  believe  that 
it  is  more  a  plague  than  a  benefit.  The  advantages 
which  it  affords  they  take  as  a  matter  of  course,  —  that 
is  what  the  State  is  for!  —  or  rather  they  are  not  con- 
scious of  benefits  at  all.     The  State  is  like  the  stomach. 


§15]       SOCIAL  MECHANICS  — COERCION        415 

one  speaks  of  it  only  to  complain  against  it;  it  is  felt 
only  when  it  becomes  a  matter  of  discomfort.  Every 
thing  is  nowadays  brought  near  to  the  understanding 
of  the  people,  —  nature,  history,  art,  technics;  there  is 
scarcely  a  subject  about  which  the  layman  cannot 
inform  himself  from  popular  treatises.  The  State  alone 
and  the  law,  which  touch  him  so  nearly,  form  the  excep- 
tion, and  yet  it  is  only  fair  that  not  only  the  educated 
man  but  also  the  man  of  the  people  should  have  the 
opportunity  to  find  out  what  they  do  for  him  and  why 
they  can  not  be  essentially  different  from  what  they  are. 
I  thought  formerly  of  filling  this  want  by  a  legal  cate- 
chism for  the  people  intended  for  the  citizen  and  the 
farmer.  My  aim  was  to  reconcile  the  unbiased  judgment 
with  the  legal  arrangements  at  which  it  takes  offence  in 
so  many  ways;  to  make  an  apology  for  the  law  and  the 
State  before  the  forum  of  the  simple  and  healthy  com- 
mon sense  of  man,  after  the  model  of  Justus  Moser.  I 
am  convinced  that  the  task  is  beyond  my  powers.  I 
hope  some  one  else  will  take  it  up.  He  who  will  carry  it 
out  right  will  earn  great  credit  from  society,  but  he  must 
think  like  a  philosopher  and  speak  like  a  peasant.  It 
would  be  a  worthy  theme  for  the  establishment  of  a 
prize.  A  hundred  thousand  marks  would  not  be  too 
high  a  premium ;  they  would  be  repaid  a  hundred  and  a 
thousand  fold.  The  work  would  be  translated  into  all 
languages  and  would  bring  the  world  more  blessing  than 
entire  libraries. 

§  15.  Solidarity  of  the  Interests  of  Society  and  the 
Individual.  We  have  so  far  let  the  individual  settle  his 
accounts  with  society  as  if  the  two  were  strangers  to 
each  other,  each  going  his  own  way  and  intent  only 
upon  his  own  advantage.  But  this  conception  does 
not  correspond  to  the  nature  of  their  mutual  relation,  for 
the   State    is    the   individual    himself  —  the  dictum  of 


416  THE   CONCEPT   OF   PURPOSE    [Ch.  VIII 

Louis  XIV,  "L'^tat  c'est  moi"  is  true  of  every  member  of 
a  State  —  to  settle  his  accounts  with  it  is  exactly  the  same 
thing  as  when  the  husbandman  settles  his  account  with 
his  field :  how  much  it  cost  him  to  cultivate  it  and  how 
much  it  brings  him  in.  To  be  sure,  there  is  one  differ- 
ence, the  field  belongs  to  him  alone,  the  State  he  has 
in  common  with  all  other  citizens.  And  it  is  because  of 
this  difference  that  his  imagination  puts  him  into 
seeming  opposition  with  the  State  instead  of  showing 
him  that  relation  of  unity  and  mutuality  which  in  reality 
subsists  between  them.  If  the  State  were  myself,  the 
individual  will  reply,  it  would  not  have  to  compel  me 
to  do  all  that  it  requires  of  me,  for  I  care  for  myself  for 
the  sake  of  my  own  interest,  and  do  not  have  to  be  com- 
pelled. 

When  the  child  is  forced  by  the  teacher  to  learn,  is 
it  done  for  the  sake  of  the  child  or  the  teacher?  And 
yet  the  child  must  be  compelled.  Why?  Because  he 
is  still  a  child.  If  he  were  grown  up,  he  would  do  from 
his  own  impulse  what  he  requires  compulsion  to  do  now. 
So  the  State  compels  you  to  do  that  which,  if  you  had 
the  true  insight,  you  would  do  of  your  own  accord. 
Imagine  the  State  as  non-existent,  or  in  a  condition  of 
powerlessness  at  the  time  of  a  revolution,  and  you  will 
realize  what  the  State  and  the  law  mean  for  you.  The 
times  of  upheaval,  revolution,  anarchy,  are  the  school 
hours  of  history,  in  which  she  gives  the  nations  a  lesson 
on  State  and  law.  A  year,  perhaps  a  month,  teaches  the 
citizen  more  about  the  significance  of  law  and  State  than 
his  whole  experience  hitherto.  The  State  and  the  law 
which  he  formerly  reviled,  he  now  invokes  when  he  is  in 
trouble.  And  the  same  man  who  laughed  at  us  when  we 
said  to  him,  "In  the  law  you  protect  and  assert  yourself, 
defend  the  law,  for  it  is  the  condition  of  your  being,"  — 
has  suddenly  understood  us. 


§15]      SOCIAL  MECHANICS  — COERCION        417 

Upon  the  presence  or  absence  of  this  insight  is  based 
the  political  maturity  and  immaturity  of  nations.  The 
politically  immature  nation  is  the  child,  which  thinks 
that  it  must  learn  for  the  sake  of  the  teacher.  The 
politically  mature  is  the  adult,  who  knows  that  he  must 
learn  for  his  own  sake.  The  former  regards  the  State 
as  its  opponent,  the  latter  as  its  friend,  confederate,  pro- 
tector; there  the  State  meets  with  resistance,  here  it 
finds  support;  there  the  people  help  the  criminal  against 
the  police,  here  they  help  the  police  against  the  criminal. 
What  is  meant  by  political  education  of  a  nation?  Does 
it  mean  that  the  common  man  can  talk  politics?  That 
shoemakers,  tailors  and  glove-makers  can  lecture  the 
skilled  statesman?  In  my  opinion  political  education 
of  a  nation  means  nothing  else  than  the  correct  under- 
standing of  their  own  interests.  But  there  are  two 
kinds  of  interests,  the  proximate,  which  can  be  seized 
with  the  hands,  so  to  speak,  and  the  remote,  which  only 
the  practised  eye  can  see.  And  so  there  are  two  kinds 
of  politics,  a  far-sighted  and  a  near-sighted.  The  former 
alone  deserves  the  name  politics  in  the  true  sense  of  the 
word.  True  politics  defined  in  a  word  is  far-sightedness — 
the  eye  of  the  far-sighted,  which  extends  far  beyond 
the  narrow  circle  of  immediate  interests,  to  which  the 
glance  of  the  short-sighted  is  confined.  In  this  sense  we 
can  speak  also  of  the  politics  of  business  life.  It  is  that 
of  the  penetrating  business  man.  The  bad  business 
man  has  sense  only  for  the  advantage  near  by,  like  the 
bad  chess  player  who  is  happy  when  he  takes  oflf  a 
pawn,  and  loses  the  game  thereby.  The  good  business 
man  sacrifices  his  pawn  and  wins  the  game.  To  express 
ourselves  in  more  abstract  terms,  —  the  characteristics  of 
bad  business  politics  consists  in  its  attention  to  the  par- 
ticular act  and  the  passing  moment,  of  good  business 
politics  in  its  attention  to  the  whole  and  the  future. 


418  THE   CONCEPT   OF   PURPOSE    [Cii.  Vlll 

This  is  also  true  of  social  politics  in  its  application  to 
State,  law  and  society.  Linguistically  politics  is  charac- 
terized as  the  sight  of  the  ttoXitikos,  i.  e.,  of  the  man 
whose  wit  has  been  sharpened  by  life  in  a  community 
(ttoXis),  in  comparison  with  the  peasant  whose  horizon 
is  limited  by  his  vocation  to  himself  and  the  narrow 
circle  of  his  immediate  interests.  The  former  knows 
that  his  own  success  is  conditioned  by  the  success  of  the 
whole  and  that  he  advances  his  own  interests  along  with 
the  general;  the  latter  believes  he  can  exist  by  himself. 
The  demands  which  the  community  makes  upon  him  are 
regarded  by  him  as  sacrifices  which  he  must  otTer  to  the 
purposes  of  others.  The  former  considers  the  community 
as  his  own  affair,  the  latter  as  that  of  others. 

This  is  the  light  in  which  the  ancient  Roman  regarded 
the  State.  What  belongs  to  the  State  belongs  also  to 
him.  They  are  the  "res  publicae,"  which  he  has  in  com- 
mon with  all  others,  in  contradistinction  to  the  "res 
private,"  which  he  has  for  himself  alone.  The  offtcials 
of  the  State  are  his  officials.  For  his  private  affairs  he 
chooses  a  representative,  for  his  public  affairs,  the  official. 
Of  both  he  requires  an  account  of  their  management  of 
the  business  entrusted  to  them.  The  law  is  his  own 
work.  As  he  disposes  of  his  private  interests  through 
the  "lex  privata,"  so  he  disposes  of  his  public  interests 
through  the  "lex  publica."  Both  stand  upon  the  same 
line  in  his  mind;  the  one  represents  an  agreement  with 
an  individual,  the  other,  with  the  community."^  For 
this  reason  he  regards  himself  also  as  the  guardian  of 
the  law;  and  as  he  enters  the  lists  in  behalf  of  his  private 
interests  by  means  of  the  "actio  privata,"  so  he  defends 
the  common  interests  by  means  of  the  "actio  popularis" 

"'  "Communis  reipuhlicx  sponsio,"  as  Pa^^wzaw  expresses  himself  in 
1.3.  1  —  a  tradition  from  the  time  of  the  Republic,  which  had  for 
his  time  only  the  significance  of  a  historical  reminiscence. 


§15]      SOCIAL  MECHANICS  — COERCION        419 

(p.  349).  The  solidarity,  or  rather  the  identity,  of  the 
interests  of  t^e  comnnmity  and  of  the  individual  could 
not  have  been  more  clearly  expressed  than  is  done  in 
the  Roman  law  by  means  of  the  last  named  action.  The 
plaintiff  guards  his  own  interest  at  the  same  time  with 
the  interest  of  the  nation. 

If  we  compare  with  this  picture  which  ancient  Rome 
presents  to  our  mind,  and  to  which  our  own  national 
past  offers  a  refreshing  counterpart  in  the  history  of  the 
Hanse  towns,  the  dreary  conception  of  the  State  which 
modern  absolutism  and  the  police  State  has  produced 
among  the  nations  of  modern  Europe,  the  complete 
estrangement,  nay,  opposition  ia  the  relations  of  the 
individual  to  the  State,  we  are  astonished  at  the  almost 
incredible  difference  which  one  and  the  same  relation 
can  exhibit.  We  shall  have  to  suffer  from  its  effects 
for  a  long  time  to  come.  The  theory  of  private  law  has 
not  yet  overcome  these  effects  by  any  means.  A  rem- 
nant of  them  has  been  preserved  to  this  day,  according 
to  my  opinion,  in  the  theory  of  juristic  persons.  The 
Roman  knew  that  just  as  the  State  is  nothing  else  than 
its  citizens,  so  the  "gens,"  the  "municipium,"  the 
"colonia"  are  nothing  else  than  the  "gentiles,"  "mun- 
icipes,"  "coloni."  Our  modern  science  has  placed  the 
juristic  person  in  place  of  the  particular  members  for 
which  alone  the  former  exists  (the  beneficiaries  as  I  call 
them),  or  the  subjects  for  the  sake  of  whom  the  juristic 
person  is  constituted,  as  if  this  imaginary  person,  which 
cannot  enjoy  or  feel  anything,  existed  for  itself. ^^^  If 
what  I  said  above  is  true,  that  the  State  is  I,  I  make  the 
same  assertion  about  the  juristic  person. 

But  if  that  statement  is  true,  why  should  it  be  neces- 
sary to  exert  force  against  me?     Is  not  my  interest  alone 

^^"See,  against  thisformalistic  conception,  my  "Geist  des  R.  R.," 
IV,  pp.  216-220,311-344. 


420  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

ordinarily  sufficient  to  guide  me  in  the  right  path?  Why 
compulsion,  if  society  requires  nothing  pf  me  except 
what  my  own  interest  involves? 

For  two  reasons.  The  first  reason  is,  deficient  knowl- 
edge. Not  every  one  has  the  insight  to  know  that  the 
common  interest  is  at  the  same  time  his  own.  To  per- 
ceive an  advantage  which  concerns  himself  exclusively, 
the  eye  of  the  most  near-sighted  is  sufficient,  it  is  the 
politics  of  narrow  egoism.  Thinking  of  himself  only, 
he  sacrifices  others  to  save  himself ;  determined  by  the 
moment  alone,  he  waits  until  the  danger  which  he  could 
and  should  have  met  in  the  proper  time  when  it  started, 
knocks  at  his  door  and  seizes  him  by  the  throat. 

Law  may  be  defined  as  the  union  of  the  intelligent  and 
far-sighted  against  the  near-sighted. ^^^  The  former  must 
force  the  latter  to  that  which  their  own  interest  prompts. 
Not  for  their  own  sake,  to  make  them  happy  against  their 
will,  but  in  the  interest  of  the  whole.  Law  is  the  indis- 
pensable weapon  of  intelligence  in  its  struggle  with 
stupidity. 

But  supposing  even  that  the  understanding  of  the 
solidarity  of  the  common  interest  with  one's  own  were 
fully  alive  in  every  individual,  and  the  consequences 
involved  in  the  former  were  objectively  so  free  from  doubt 
that  no  difference  of  opinion  could  at  all  arise  regarding 
them,  this  would  not  yet  in  any  way  make  the  law  super- 
fluous. And  here  we  touch  on  the  second  reason  which 
makes  social  coercion  necessary.  The  imperfect  knowl- 
edge of  the  individual  is  not  the  only  reason  that  makes 
law  necessary;  the  second  reason  is  the  bad  or  weak  will, 
which  sacrifices  the  more  remote  common  interest  for 
the  sake  of  his  own  more  proximate  interest.  This  leads 
me  again  to  a  point  which  I  had  frequent  occasion  to 

^^  So  Papinian  in  his  definition  of  law  in  1.  3.  1,  "Lex  est  com- 
mune praeceptum,  virorum  prudentium  consultum." 


§15]      SOCIAL  MECHANICS— COERCION        421 

touch  upon  in  various  connections  (pp.  163,  220,  344), 
viz.,  the  difference  between  the  particular  and  the  common 
interest  which  is  in  the  essence  of  the  social  relation.  It 
is  found  again  in  civil  society  j^'^^  and  therein  lies  the  weak- 
ness as  well  as  the  strength  of  law.  Weakness,  in  so  far 
as  the  particular  interest  (I  understand  by  this  every 
motive  in  which  the  agent  has  himself  only  in  mind,  not 
merely,  therefore,  interest  in  the  ordinary  sense,  i.  e., 
desire  for  gain,  but  also  hatred,  desire  of  revenge,  etc.) 
tempts  the  individual  to  assert  his  own  ego  at  the  expense 
of  society.  Strength,  inasmuch  as  the  common  interest 
combines  all  other  individuals  in  a  defensive  union 
against  him,  and  opposes  to  the  interest  which  he  has  in 
injustice  the  interest  which  they  have  in  justice;  to  the 
power  which  he  commands  for  the  purpose  of  attack,  the 
power  which  they  command  for  the  purpose  of  defence 
(p.  219). 

When  we  said  that  the  person  who  violates  the  law 
desires  himself  at  the  expense  of  society,  it  did  not  mean 
that  he  desires  himself  only,  but  as  was  brought  out 
above  (p.  344),  he  desires  himself  and  society;  and  just 
herein  lies  the  morally  objectionable  character  of  viola- 
tion of  law.     It  is  not  simple  egoism  which  wants  to 

122'pjjjg  opposition  Rousseau  also  emphasizes  in  his  "Contrat 
Social,"  I,  ch.  7,  to  which  my  attention  was  called  after  the  pas- 
sages of  my  book  quoted  before  had  already  been  printed.  "En 
effet,"  he  says,  "chaque  individu  peut,  comme  homme,  avoir  une 
volonte  particuliere  contraire  ou  dissemblable  ^  la  volonte  generale 
qu'il  a  comme  citoyen;  son  interet  particulier  peut  lui  parler  tout 
autrement  que  1 'interet  commun;  son  existence  absolue,  et  naturelle- 
ment  independante,  peut  lui  faire  envisager  ce  qu'il  doit  k  la  cause 
commune  comme  une  contribution  gratuite,  dont  la  perte  sera 
moins  nuisible  aux  autres,  que  le  paiement  n'en  est  onereux  pour 
lui;  et  regardant  la  personne  morale  qui  constitue  I'etat  comme  un 
^tre  de  raison,  parce  que  ce  n'est  pas  un  homme,  il  jouirait  des  droits 
du  citoyen  sans  vouloir  remplir  les  devoirs  du  sujet;  injustice  dont 
le  progres  causerait  la  ruine  du  corps  politique." 


422  THE   CONCEPT   OF   PURPOSE    [Ch.  Vlll 

exist  for  itself  only  and  not  for  others;  it  is  egoism  raised 
to  the  highest  power,  which  profits  by  the  advantages 
and  blessings  of  society  for  itself,  but  refuses  the 
moderate  price  which  the  latter  demands  in  turn.  If 
all  acted  like  the  egoist,  his  account  would  not  square, 
nay,  he  would  come  to  be  convinced  that  his  own  inter- 
est peremptorily  demands  co-operation  for  the  common 
purpose.  His  thought  therefore  is  not,  "The  common 
purposes  are  indifferent  to  me,"  but,  "I  leave  their  reali- 
zation, with  which  I  can  no  more  dispense  than  any  one 
else,  to  others,  and  pursue  my  own  interests  only.  Let 
them  bother  with  it,  I  for  my  part  care  only  for  my- 
self." If  he  were  given  the  alternative,  "either  your 
own  ego  or  society,"  his  choice  would  not  be  doubtful. 

But  modern  society  does  not  present  this  alternative 
before  him,  it  does  not  deprive  him  of  the  blessings  of 
the  law  because  he  himself  disregards  it.  It  is  only  in 
the  lowest  stages  of  the  development  of  law  that  we  meet 
with  the  opposite  mode  of  treatment  in  case  of  a  heavy 
offence  (expulsion  of  the  offender  from  society:  Roman 
"societas,"  German  outlawry  and  proscription, — a  rem- 
nant of  these  regulations  of  primitive  times  in  later 
Rome  is  voluntary  exile  in  case  of  imminent  condemna- 
tion). In  scientific  discussions  this  alternative  is  made 
use  of  by  the  individualistic  theory  of  law  and  the 
Law  of  Nature,  to  base  upon  it  the  criminal  law  of  soci- 
ety.^   The  deduction  is  as  follows:   If  you  free  yourself 

^^  So  by  J.  G.  Fichte  in  his  "Grundlage  des  Naturrechts  nach  Prin- 
zipien  der  Wissenschaftslehre"  (Jena  and  Leipzig,  1796).  "The 
least  injury  to  property  destroys  the  entire  property  contract,  and 
it  justifies  the  oflfended  in  taking  away  ever>'thing  frcm  the  offender 
if  he  can"  (Vol.  II,  p.  7).  He  who  violates  the  civil  contract  in  any 
respect,  whether  deliberately  or  thoughtlessly  where  the  contract 
counted  on  his  thoughtfulness,  loses  thereby,  strictly  speaking,  all 
his  rights  as  a  citizen  and  as  a  man  and  becomes  an  outlaw  com- 
pletely" (p.  95).     In  place  of  outlawry  comes  the  "expiation  con- 


5  15]      SOCIAL  MECHANICS— COERCION       423 

from  us,  we  free  ourselves  from  you.  You  have  lost 
the  protection  of  the  law  because  you  have  disregarded 
it;  you  are  deprived  of  all  right,  hence  any  punishment 
we  inflict  upon  you  is  justified.  The  consequence  of 
this  would  be  that  the  smallest  opposition  to  the  police, 
nay,  even  a  violation  of  the  civil  law,  might  be  punished 
with  death  or  confiscation  of  one's  whole  property.  That 
society  does  not  do  this  is  merely  a  kindness  on  its  part. 

The  result  with  which  the  discussion  closes  is  the  social 
indispensability  of  coercion. 

But  however  indispensable  it  may  be,  it  is  also  at  the 
same  time  insufficient.  If  it  should  attain  its  purpose 
completely,  there  would  have  to  be  no  crimes.  This 
gives  us  the  point  of  transition  to  the  next  chapter. 
What  keeps  a  man  from  committing  an  injustice  where 
he  knows  that  he  will  not  be  found  out  and  need  not  there- 
fore fear  compulsion?  The  answer  to  this  will  be  found 
in  the  next  chapter.  The  two  egoistic  levers  of  which 
society  makes  use  to  make  the  individual  serviceable  to 
its  purposes,  are  not  the  only  ones.  There  is  still  another, 
which  appeals  not  to  the  lower  egoism,  but  to  something 
higher  in  man  —  morality. 

tract"  (p.  98),  the  thief  must  make  amends,  or  if  too  poor,  by  labor. 
So  long  as  he  has  not  done  it,  "he  ceases  to  be  a  citizen,  as  is  the 
case  in  all  penalties"  (p.  112).  "With  exclusion  is  connected  ipso 
facto  confiscation  of  the  entire  property"  (p.  130).  I  know  of  no 
work  in  all  literature  in  which  the  folly  of  consistency  in  following 
up  an  erroneous  fundamental  idea  rises  to  such  dizzy  heights  as  in 
this  one. 


APPENDICES 


APPENDIX  I 

RUDOLF  VON  IHERING^ 

By  Adolph  Merkel' 

The  man  and  his  works!  How  much  aUke!  He  who 
would  describe  the  work  must  characterize  the  man; 
and  to  explain  the  personality  is  to  interpret  the  ac- 
complishment. Ihering's  literary  effort  represents  the 
progressive  unfoldment  of  his  nature  in  the  domain  of 
theoretical  pursuits. 

Ihering's  personality  was  of  a  kind  so  original  and 
energetic  that  in  whatever  field  of  endeavor  he  entered, 
he  immediately  made  a  distinct  impression  on  its  thought 
and  reached  its  central  position,  with  a  sympathetic, 
and  if  need  be,  antagonistic  understanding.  Rare 
warmth  of  disposition,  sociability,  a  candid  and  upright 
nature,  unenvious  recognition  of  the  merits  of  others, 
a  quick  sympathy  for  the  misfortune  of  strangers,  and 
especially  a  lively  interest  in  the  welfare  of  his  friends, 
gained  for  Ihering  many  attachments.  A  man  of  great 
conversational  talent,  eloquent,  rich  in  humor,  buoyant 
of  spirit,  with  a  talent  for  initiative  in  a  hundred  different 
directions,  of  an  impulsive  nature,  impartial  in  the 
estimate  of  his  own  work,  sensitive  to  opposition,  and 
unreserved  in  the  expression  of  his  convictions,  he 
achieved  enemies.  One  is  struck  by  the  combination  in 
Ihering  of  a  prudence  of  life  and  a  certain  naiveness  of 

*  [The  text  translated  is  a  reprint  from  Ihering's  "Jahrbucher  fiir 
Dogmatik  des  heutigen  Romische'  und  Deutschen  Privatrechts," 
Bd.  xxxii,  N.  F.  xx  (Jena,  Gustav  Fischer,  1893). 

It  was  translated  by  Albert  Kocourek,  Lecturer  on  Jurisprudence 
in  Northwestern  University, and  member  of  the  Editorial  Committee.] 

^  (Late  Professor  of  Law  at  the  University  of  Strassburg.  To 
Professor  Merkel  the  first  edition  was  dedicated  by  the  author.] 


428  APPENDIX   I 

expression  of  thought,  and  the  conjunction  of  a  matter- 
of-fact  judgment  upon  men  and  things,  with  an  imagina- 
ti\e  and  enthusiastic  tendency  of  mind,  concerning  the 
practical  and  practicable.  He  possessed  a  joyous 
nature  such  as  is  not  found  often  among  those  of  con- 
spicuous learning.  While  his  life  is  closed,  yet  as  a 
sanguine  spirit  he  richly  experienced  the  alternation  of 
heaven-high  exultation  and  the  depths  of  despair,  though 
with  far  more  joy  than  unhappiness  in  his  career.  Hap- 
piness poured  from  a  hundred  springs,  and  yet  did  not 
suffice. 

He  was  a  modern  through  and  through,  with  the  most 
finished  sense  of  the  realities  of  life,  but  wanting  in  con- 
templative inclinations,  and  an  enemy  of  the  twilight 
and  the  Romantic  in  poetry  and  action.  A  mighty 
passion  for  intellectual  domination  of  the  objects  within 
the  province  of  his  thought  surged  within  him.  This 
found  expression  in  a  two-fold  aspect:  on  one  hand,  in  a 
struggle  for  unconditional  precision  of  ideas,  and  the 
greatest  completeness  of  what  is  utilizable,  clear,  and 
essential;  and  on  the  other  hand,  in  a  rapid  elevation 
of  thought  to  a  far-reaching  outlook.  No  matter, 
though,  to  what  height  he  arose,  the  concrete  actualities 
of  earth  were  always  clearly  within  his  range  of  vision. 
He  might  be  likened  to  the  eagle  which,  perched  upon  the 
cliff,  surveys  at  a  glance,  all  that  crawls  or  moves  below. 
Moreover,  the  view  from  aloft  did  not  lessen  his  sym- 
pathies. The  things  that  engaged  him  were  not  appre- 
hended alone  by  the  intellect,  but  were  grappled  by  all 
the  faculties  of  his  mind.  His  whole  personality  moved 
as  a  unit,  and  he  identified  himself  with  his  problems. 

All  these  characteristics  are  mirrored  in  the  literary 
style  of  his  scientific  works,  and  give  them  thefr  at- 
traction and  meaning.  Ihering's  effectiveness,  in  large 
measure,  is  the  product  of  his  style.     The  same  fact  has 


MERKEL  429 

contributed  chiefly  to  his  fame  beyond  the  borders  of 
Germany,  and  gained  him  an  enthusiastic  following  in 
foreign  countries.  It  is  interesting  in  this  connection 
to  compare  him  with  Savigny,  From  the  standpoint  of 
literary  expression  no  other  German  jurist  can  be  con- 
sidered in  the  class  of  these  two  men.  Both  had  the 
gift  of  crystal  clearness  of  statement,  but  in  other  re- 
spects what  a  difference!  Savigny 's  writing  has  the 
quality  of  aristocratic  coldness  and  repose,  balance  of 
coloring,  aloofness,  and  personal  withdrawal  behind  the 
shadows  of  his  work.  His  canvas  seemed  to  lie  far  from 
his  soul.  As  Ihering  has  remarked,  the  subject  does 
not  express  itself  with  Savigny  through  the  material,  but 
the  matter  itself  takes  hold  of  the  form  of  thought. 

Ihering's  style,  on  the  contrary,  possesses  a  lively 
coloring,  is  frequently  oratorical  and  exuberant;  the 
author  does  not  conceal  himself  with  his  thoughts;  he 
projects  himself  in  living  form  in  every  line;  and  he 
seeks  not  only  to  clarify  his  subject,  but  also  to  carry  his 
reader  with  him  by  storm.  He  coins  apt  phrases  and 
winged  words  to  serve  as  carriers  for  his  ideas.  His 
exposition  is  marked  by  profusion  and  breadth;  he 
would  illuminate  his  thesis  to  the  point  of  triviality  and 
leave  nothing  in  doubt.  A  major  device  which  he 
employs  is  to  resort  to  things  plain  to  the  senses.  Ihering 
was  a  master  in  combining  the  abstract  and  the  self- 
evident.  His  so-called  "natural  historical  method"  is 
founded  throughout  on  this  plan  of  combining  diverse 
ideas;  although,  perhaps,  Ihering  may  at  times  have 
considered  this  method  as  having  another  and  higher 
function.  By  all  means,  this  combination  of  general 
and  special  ideas  accounts  for  the  abundance  of  his 
striking  and  frequently  witty  comparisons.  In  this 
regard,  and  in  yet  another,  Ihering  suggests  a  German 
philosopher  who  in  the  basic  trends  of  his  system  is 


430  APPENDIX  I 

farthest  removed  from  him  —  Schopenhauer,  who  in  the 
sphere  of  philosophy,  in  the  same  way  that  Ihering  in 
the  domain  of  jurisprudence,  is  distinctive  for  his  clear- 
ness of  literary  expression,  wealth  of  sprightly  compari- 
sons, and  constant  association  of  the  abstract  with  the 
concrete  in  thought.  There  is  also  to  be  remarked  a 
common  tendency  in  both  to  battle  against  the  dominion 
of  idea  as  opposed  to  reality. 

It  hardly  needs  to  be  said,  in  speaking  of  these  quali- 
ties of  Ihering's  writing  that  they  are  based  on  eminent 
scholarship.  If  Ihering  as  a  "Docent"  did  not  attain 
the  position  of  a  Vangerow,  the  chief  reason  lay  in  that 
his  temperament  prevented  a  superior,  magisterial  bear- 
ing necessary  for  great  success,  and  made  laborious  for 
him  a  satisfactory  treatment  of  student-like  miscellanies 
for  the  purpose  of  a  balanced,  comprehensive,  reliable, 
and  understandable  notebook  of  the  materials  in  hand. 
This  temperamental  defect  naturally  did  not  apply  to  the 
practical  courses  where  Ihering  was  in  his  proper  ele- 
ment. To  the  present  writer,  the  lectures  of  Ihering 
were  far  more  interesting  than  those  of  Vangerow. 
After  I  had  heard  Ihering,  Vangerow's  discourse  was  a 
closed  book. 

Ihering  was  an  inspired  jurist  in  his  reading  of  the 
"Corpus  Juris."  He  was  fascinated  by  the  juristic 
world  into  which  he  entered,  a  world  of  intellectual 
materials,  in  which  "the  motive  power  of  ideas"  appeared 
to  be  a  reality,  and  he  was  attracted  by  the  mental 
powers  and  independence  of  the  rulers  and  masters  of 
this  world.  Jurisprudence  appeared  to  him  a  science 
in  which,  notwithstanding  its  practical  purpose,  specu- 
lative talent  had  free  scope,  and  in  which  this  talent 
best  served  its  practical  objects,  in  that  it  was  subject 
to  its  own  laws.  In  the  third  volume  of  the  "Geist," 
and    in    the    treatise   with    which    he    introduced    the 


MERKEL  431 

"Jahrbiicher,"  he  exhaustively  characterized  and  glorified 
the  speculative  problems  here  set  forth.  The  operative 
sphere  for  this  speculative  mission  is  that  which  Ihering 
calls  the  higher  or  productive  jurisprudence  as  opposed 
to  the  lower  or  merely  receptive  jurisprudence.  Within 
its  domain  the  juristic  skill  of  the  Roman  jurist  is  to 
be  emulated.  However  much  the  position  of  practical 
and  professional  jurists  in  the  development  of  law  differs 
from  that  of  Labeo  and  Julian,  yet  Ihering  appears  to 
have  made  possible,  in  large  degree,  the  prosecution  of 
a  productive  effort  in  jurisprudence,  even  to  the  present 
day.  The  content  of  ideas  which  the  positive  law  in- 
volves goes  beyond  it  to  make  all  necessities  conform- 
able to  the  conditions  of  the  present  time.  The  point  is 
that  the  positive  law  is  to  be  more  completely  developed 
and  extended,  but  not  in  slavish  dependence  on  the 
Roman  jurists  at  the  point  where  their  labors  ended. 

Construction  was  for  Ihering  the  chief  form  of  this 
productive  labor,  and  the  "Jahrbiicher"  were  especially 
designed  for  this  purpose.  For  him,  a  revival  of  con- 
structive jurisprudence  together  with  a  restoration  of 
the  sources  of  the  law  led  the  way  to  a  new  epoch 
in  the  science  of  law,  advanced  by  Savigny's  treatise 
on  possession. 

Ihering's  positive  contributions  from  the  standpoint  of 
constructive  jurisprudence  are  in  the  main  unassailable. 
But  it  is  clear  that  the  elaboration  of  his  ideas  brought 
out  his  fiercely  contested  and  much  derided  logical  cult. 
He  was  the  unmistakable  high-priest  of  this  doctrine. 
His  exposition  is  biased,  and  the  conditions  under  which 
the  constructive  operation  promises  real  results  and  the 
limits  which  mark  out  an  unprofitable  Scholasticism 
are  not  made  clear  —  at  least  not  in  the  treatment  of  the 
"Jahrbiicher." 

However,  if  we  examine  the  long  series  of  dogmatic 
labors  which  followed  Ihering's  statement  of  his  program, 


432  APPENDIX  I 

we  shall  fail  to  encounter  any  over-valuation  of  the  logical 
element,  or  any  over-extension  of  its  limits.  Surveying  the 
range  of  these  efforts,  no  difference  is  to  be  encountered 
in  them  as  between  the  youth  and  maturity  of  Ihering, 
apart  from  more  general  points  of  view.  From  the 
beginning  he  possessed  a  lively  sense  of  the  nature  of 
the  relations  of  life  and  their  commerce,  and  the  way  in 
which  legal  rules  operate  on  them.  Even  there,  where 
his  investigations  did  not  directly  serv^e  practical  trends, 
as  perhaps  in  the  treatment  of  the  reflex  action  of  laws, 
and  in  his  discussion  of  the  passive  effect  of  laws,  one 
does  not  find  a  mere  juggling  of  concepts.  He  found 
occasion  here  to  deal  with  a  group  of  phenomena  of 
legal  life  which,  while  interesting  enough,  had  previously 
escaped  attention.  His  purpose  was  to  show  their 
practical  bearings,  to  unify  them  under  a  single  point 
of  observation,  and  to  disclose  in  them  at  the  same  time 
the  terminal  point  of  civil  protection  of  private  legal 
interests  (not  however  "conceptionally  necessary'"  in- 
terests but  actual  interests  conforming  to  relative  ends) . 
This  exposition  was  designed  to  combine  a  series  of 
related  (although  in  previous  juristic  thought,  wholly 
unconnected)  phenomena  and  to  reduce  their  distinctive 
qualities  to  a  common  and  simple  characteristic;  that 
is  to  say,  the  state  of  perpetual  legal  constraint  of  persons 
and  things  alongside  of  a  temporary  absence  of  a  person 
entitled.  As  to  the  rest,  so  far  as  the  present  WTiter 
can  see,  the  conceptual  process  never  extends  in  the 
dogmatic  labors  of  Ihering,  beyond  the  point  where  an 
obvious,  practical  interest  may  be  found.  In  fact,  the 
objective  factor  is,  after  a  fashion,  directively  present 
even  in  Ihering's  earlier  works  (for  example,  that  con- 
cerning the  limits  of  ownership  of  land),  which,  in  his 
later  works,  is  established  as  the  leading  principle  of 
juristic    thought.      Not     infrequently    practical     cases 


MERKEL  433 

VA  ere  encountered  which  appeared  to  offer  a  conflict 
between  the  traditionally  accepted  view  and  the  neces- 
sities of  legal  life,  which  gave  occasion  to  these  labors. 
Thus  his  exposition  of  the  doctrine  of  "caveat  emptor." 
Participation  in  decisions,  in  the  rendering  of  opinions, 
in  the  discussion  of  cases  in  juristic  associations,  and  his 
practical  experience,  influenced  to  a  very  large  extent 
the  trend  of  his  dogmatic  studies,  and  exerted  at  the  same 
time  a  profound  and  even  revolutionary  power  over  his 
more  general,  scientific  views.  Among  these  influences, 
mention  must  not  be  omitted  of  the  happily  composed 
legal  instances  to  which  Ihering  gave  a  general  value. 
Especially  characteristic  is  his  "Law  in  Daily  Life"' 
which  brought  to  juristic  notice  the  trivialities  of  the  day 
with  their  manifold  complications. 

Ihering  with  a  preference  for  theories  yields  not  to 
conceptual  but  to  casuistic  proof.  The  results  achieved 
by  casuistic  reasoning  concerning  the  interests  involved 
in  a  legal  proposition  furnish  the  chief  measure  of  legal 
judgment,  even  as  against  the  "lex  lata";  for  he  will 
not  admit  its  conflict  with  purpose  without  cogent 
ground.  He  therefore  delights  to  start  with  these  inter- 
ests, and  examines  to  find  whether  the  protective  mantle 
of  the  law  is  adequate  to  safeguard  them.  If  defects 
appear  in  the  armor  of  legal  protection,  according  to  the 
prevailing  theories,  then  these  theories  for  him  are  not 
to  be  trusted.  He  thinks  that  prejudices  have  inter- 
vened between  law  and  necessity,  and  that  this  evil  is 
attributable  not  to  the  Roman  jurist  but  to  the  narrow 
point  of  view  of  the  modern  jurist.  He  therefore  searches 
through  the  intellectual  domain  of  Roman  jurisprudence 
for  the  materials  to  supply  the  deficiencies  of  modern 

*  ["Jurisprudenz  des  Taglichen  Lebens,"  translated,  with  notes, 
from  the  8th  (9th  and  10th)  edition  of  the  German  under  the  text 
title,  by  Henry  Coudy,  Oxford,  1904.] 


434  APPENDIX  I 

law,  and  to  combat  the  hindering  obstacles  of  tradi- 
tional dogmatic  thinking.  As  a  rule  he  finds  what  he  is 
looking  for.  Many  of  the  legal  propositions  of  the 
Roman  jurists,  however,  attain  only  a  fragmentary  ex- 
pression, or  are  stated  only  wathin  the  limits  of  the  legal 
transactions,  and  in  response  to  the  practical  occasions 
of  the  day,  and  are  not  founded  on  any  system  of  legal 
thought.  Ihering  here  exerts  his  whole  energy  to  make 
way  for  a  more  universal  application  of  Roman  legal 
principles  conformable  to  the  necessities  of  the  present 
time.  Examples  in  his  labors  of  this  effort  of  reconcile- 
ment are  his  studies  of  "culpa  in  contrahendo,"  the 
extension  of  the  law  of  obligations  to  things  of  special 
value  ("afifektionsinteresse"),  and  civil  protection  against 
injuries  to  reputation.  In  all  these  discussions,  it  would 
be  of  no  little  interest  to  compare  Ihering's  method  with 
that  of  Windscheid,  but  that  must  be  left  to  others. 

The  dogmatist  Ihering  does  not  change  character 
even  in  his  contributions  to  the  doctrine  of  possession. 
The  only  difference  is  that  in  these  writings  there  is  also 
found  the  characteristic  method  expressing  his  scientific 
views  which  first  attained  an  unlimited  validity  for  him 
in  his  sharp  controversial  attitude  against  Savigny  and 
others.  The  method  of  operation  assimilates  the  corre- 
sponding theory  with  Ihering,  and  dogmatic  inquiry 
becomes  a  process  of  demonstration  for  the  theory. 

Whether  the  views  of  the  author  as  to  what  is  expedi- 
ent and  his  notion  of  legal  justice  did  not  unduly  influ- 
ence, in  these  labors,  the  interpretative  function,  is  a 
question  which  Romanists  may  decide.  But  possible 
defects  of  this  kind  do  not  detract  from  the  stirring 
interest  of  his  works  or  their  legitimate  influence  on 
legal  thought.  Nor  can  it  be  denied  that  these  writings 
actually  contain  something  of  the  productive  jurispru- 
dence postulated  by  Ihering,  and  also  serve  practical 
interests. 


MERKEL  435 

Yet,  as  to  productive  jurisprudence,  much  remains  to 
be  said,  if  this  were  the  place  to  say  it.  It  may,  however, 
be  stated  with  due  reserve,  that  this  jurisprudence  has 
brought  to  Hght  a  certain  amount  of  difficulty  in  dealing 
with  the  legal  life  of  the  present  day,*  and  that  this 
awkwardness,  as  it  seems  to  the  present  witer,  is  coex- 
tensive with  a  defect  in  its  method. 

Ihering's  original  overvaluation  of  the  logical  element 
in  jurisprudence  later  harmonized  with  his  desire  of 
freedom  from  the  spiritual  letter  of  the  law,  in  which 
attitude  the  purely  positive  standpoint  had  its  influ- 
ence. This  highly  characteristic  position,  however, 
found  expression  in  another  and  more  important  manner. 
Two  ways  lead  to  this  end  —  to  freedom  from  the  burden- 
some difficulty  of  the  rnaterial  content  of  law,  or  rather, 
to  intellectual  domination  of  this  content.  These  were 
the  dogmatic  and  the  genetic  methods :  logical  treatment 
and  concentration  on  one  hand;  and,  on  the  other, 
exposition  of  the  intellectual  process  by  which  the  posi- 
tive law  arises,  is  maintained,  and  develops,  and  in 
which  likewise  the  test  of  its  interpretation  is  to  be 
found.  Without  doubt  the  latter  method  is  the  more 
difficult  and  important,  and  Ihering  applied  himself  to  it 
in  its  connection  with  Roman  law  in  his  earlier  years  with 

*The  unwilling  attitude  which  our  jurists  schooled  in  the  Civil 
law  have  always  maintained  with  reference  to  an  extension  of  lia- 
bility for  injuries  to  third  persons  in  the  domain  of  culpable  acts, 
in  the  face  of  obvious  necessities  and  a  present  legal  sense  of  the 
desirability  of  such  extension,  is  an  example  of  this.  We  have  not 
made  a  possession  of  the  legal  generalizations  of  the  Roman  system, 
which,  with  respect  to  civil  liability,  has,  like  our  criminal  law, 
scarcely  (and  illogically)  made  application  of  the  legal  consequences 
of  intentional  and  negligent  legal  injuries.  Productive  jurisprudence 
in  Ihering's  view  of  its  meanings  coincides  with  the  mission  of  a 
positivistic  legal  philosophy  in  that  its  content  of  ideas  as  to  legal 
principles  is  to  be  reduced  to  the  simplest  possible  term  with  the 
most  complete  range  of  application. 


436  APPENDIX  I 

incomparable  ability.  Ihering's  desire  to  master  the  law 
in  the  sense  noted,  corresponded  to  our  national  desire 
for  legal  independence  growing  out  of  the  fact  of  recep- 
tion of  Roman  law.  This  law  had  made  itself  a  part  of 
the  intellectual  organism  of  the  German  people;  it  was 
an  authoritative  and  invisible  force,  and  an  unassailable 
factor  of  our  practical  philosophy.  But  this  philosophy 
was,  and  is,  a  foreign  element  in  national  life,  so  long  and 
to  the  extent  that  it  is  not  <  ritically  examined  as  to  its 
sources  and  made  conformable  to  the  conditions  of  our 
own  economic,  political,  and  cultural  life.  Ihering  was 
an  instrument  of  the  existing  national  impulse  for  inde- 
pendence, and  his  greatest  work,  the  "Geist  des  Romischen 
Rechts"  was  destined  to  serve  this  tendency.  Its  pur- 
pose was  a  full  understanding  of  Roman  law  and  the  his- 
tory of  its  development ;  in  order  to  derive  from  it  its 
standards  of  legal  measurement,  and  to  create  the  possi- 
bility of  future  national  legislation,  by  a  method  of 
selection  and  exclusion,  revision  and  adjustment,  the 
connection  of  the  new  with  the  old,  and  the  forging  of  a 
conformable  law  agreeable  to  the  requirements  of  the 
present  day  and  our  national  genius.  "Through  Roman 
law  and  beyond  Roman  law"  was  the  motto  for  this 
side  of  his  activity.  That  such  was  the  task  which  he 
set  for  himself,  and  that  he  achieved  actual  results  in  this 
direction  —  upon  this  chiefly  rests  his  title  to  fame. 

Savigny  laid  down  the  program  of  an  evolutionary 
history  of  law.  But  the  historical  labors  of  his  school 
(apart  from  Puchta's  "Institutes")  did  not  yield  results 
showing  an  appreciably  intimate  relation  to  this  platform. 
W'ithout  dwelling  on  their  antiquarian  character,  these 
labors  were  principally  directed  to  the  servace  of  legal 
dogmatic,  and  not  to  the  explanation  of  the  psychic  side 
of  law,  and  its  development  in  connection  with  cultural 
life.     Ihering  undertook  the  work  which  the  Historical 


MERKEL  437 

School  only  proposed ;  but  what  he  brought  forth  quickly 
showed  him  numerous  contradictions  of  its  thesis. 

The  historical  view  of  law  found  its  origin  in  the  age 
of  Romanticism,  and  took  form  in  the  war  against  the 
ideas  of  revolutionary  times.  This  relation  was  out- 
grown with  Ihering,  and  the  Romantic  vestment  was 
cast  aside.  This  explains  his  anomalous  position  with 
reference  to  universalism  in  law.  The  contrast  of  the 
revolutionary  period  against  cosmopolitanism  led  the 
Historical  School  to  an  exclusive  accentuation  of  the 
national  element  in  the  law.  Law,  for  this  school,  is  an 
integral  part  of  a  specific  national  culture,  as  was  the 
case  among  the  Greeks  and  in  ancient  Rome  (unlike 
modern  peoples)  where  custom  and  law  had  a  distinct 
national  character.  Ihering  sought  in  his  "Spirit"  and 
elsewhere  to  show  how,  in  what  form,  and  by  what  means 
the  Roman  law  developed  out  of  national  character  in 
the  period  of  classical  jurisprudence,  beyond  the  range 
of  mere  national  disposition,  and  became  a  cultural 
element  fit  to  have  a  universal  position  in  the  modern 
world  among  other  national  elements  of  like  character. 
Were  it  otherwise,  then  with  the  re-invigoration  of  our 
national  life,  our  purpose  could  be  only  to  eliminate  this 
foreign  law,  root  and  branch,  as  speedily  as  possible; 
an  object  which  was  farthest  from  the  thought  of  the 
Historical  School.  In  other  respects  touching  the 
national  origin  of  law,  the  Historical  School  contented 
itself  with  attributing  it  to  a  "Volksgeist"  or  the  con- 
sciousness of  the  people.  Ihering,  on  the  contrary, 
sought  to  discover  the  intellectual  forces  which  con- 
stituted this  "Volksgeist,"  and  to  explain  in  detail  their 
part  in  the  development  of  law.  He  further  opposed 
the  notion  of  this  school  of  an  unconscious  creation  and 
growth  of  law  arising  out  of  the  mysterious  bosom  of  the 
spirit  of  the  people.     His  contention  is  (and  his  view 


438  APPENDIX  I 

is  correct),  that  in  the  formation  of  distinctive  legal 
institutions,  there  is  operative,  from  the  very  beginn'ng, 
a  conscious  activity  of  will ;  and  there  is  present  a  reflec- 
tive participation  of  the  understanding.  His  history 
of  ancient  Roman  law  aims  to  furnish  the  proof  of  this 
position;  and  in  this  connection  he  arrives  at  a  different 
estimate  of  legislative  effort  from  the  Historical  School. 
With  Leist  and  others,  he  asserts  the  eminent  importance 
of  legislation  in  the  self-assertion  of  law,  against  the 
narrowness  of  view  of  this  school  in  its  emphasis  upon 
customary  law.  This  Roman  history  affords  him  tan- 
gible proofs  for  his  standpoint.  Altogether,  the  evolu- 
tionary concept  has  a  different  complexion  with  Ihering 
than  with  Savigny.  This  central  thought  of  modern 
science  has  a  conservative  reception  with  Savigny  and 
those  of  his  school.  They  make  prominent  always  the 
stability  of  history,  and  the  dependence  on  one  hand 
of  the  present  on  the  past,  and  on  the  other,  of  indivi- 
duals on  objective  forces.  Ihering,  however,  in  harmony 
with  general,  modern  science,  gives  this  idea  a  progressive 
coloring.  Yet,  as  already  indicated,  he  represents  the 
opposition  against  the  intellectual  self-independence 
of  positive  law. 

Ihering's  exposition  of  the  self-assertiveness  of  Roman 
law  in  relation  to  other  cultural  elements,  that  is  to  say, 
the  distinctive  forms  in  which  it  distinguishes  itself  from 
them  and  develops  and  manifests  itself  as  a  special 
domain,  is  a  lasting  contribution.  The  same  may  be 
said  of  his  explanation  of  the  working  methods  of  Roman 
jurisprudence,  and  the  ethical  and  intellectual  quaHties 
which  show  themselves  in  these  methods  and  predestined 
the  Roman  people  for  this  system.  Ihering  is  right  in 
accepting  that  the  prodigious  marvel  of  Roman  juris- 
prudence is  not  to  be  explained  by  mere  reference  to  a 
logical  virtuosity  of  its  jurists;    and  that  there  are  to 


MERKEL  439 

be  considered  pre-eminently,  as  conditions  of  this  labor, 
the  singular  practical  tendencies  and  talents  of  the  Roman 
mind,  and  definite  underlying  qualities  of  character, 
rather  than  bare  logical  skill.  Pertinent  in  this  connec- 
tion is  what  Ihering  says  concerning  the  discipHned 
egoism  of  the  Romans,  their  impulse  toward  power  and 
freedom,  and  the  importance  of  these  factors  for  the  self- 
independence  of  their  law.  Indeed,  the  specific  function 
of  law  lies  in  the  delimitation  of  the  sphere  of  might  and 
freedom.  The  working-out  of  this  function  in  its  dis- 
tinctive qualities  is  essentially  favored  by  the  energy 
of  colliding  interests  whose  proper  spheres  of  power  are 
to  be  marked  out  against  each  other.  Among  a  people 
with  an  overbalanced  spirit  of  passivity  or  altruism, 
the  development  of  the  characteristic  quality  of  law, 
as  it  was  in  Rome,  would  be  unthinkable ;  the  generative 
force  of  law  would  be  lacking. 

Ihering  had  the  intention  from  the  beginning  of  con- 
tributing a  "natural  science  of  law"  through  an  exposition 
of  the  evolutionary  course  of  Roman  law ;  in  other  words, 
to  present  a  philosophy  of  law.  His  assumption  of  a 
coincidence  of  mission  of  legal  philosophy  and  history 
was  well  founded.  Condensed  evolutionary  history  is 
philosophy.  The  mind  which  should  be  able  to  make 
a  complete  survey  of  the  evolutionary  history  of  man- 
kind, and  render  a  unified,  concentrated,  and  precise 
statement  of  this  history,  would  belong  to  the  greatest 
of  philosophers.  What  such  a  mind  could  teach  us, 
would,  in  any  given  age,  exceed  the  whole  of  general 
knowledge. 

Ihering's  work,  however,  affords  a  contribution  in  this 
direction,  and  future  legal  philosophy  will  have  to  draw 
on  him.  His  discussion  of  his  subject  repeatedly  lays 
off  almost  entirely  its  historical  garments.  Particular 
parts  of  his  work  will  admit  of  simple  incorporation  in 


440  APPENDIX  I 

a  system  of  legal  philosophy.  Thus,  the  excursus  in  the 
last  volume  of  his  "Geist,"  concerning  the  notion  of 
rights. 

Complete  harmony  between  these  writings  and  a  phil- 
osophy of  law,  of  course,  is  not  to  be  expected.  Ihering's 
views  on  philosophy  of  law  underwent  numerous  changes. 
Apart  from  this  fact,  there  is  apparent,  in  many  of  his 
elaborations,  a  certain  amount  of  incongruity  due  to  the 
animated  manner  in  which  he  seized  the  matters  in  hand 
in  an  effort  to  bring  out  a  brilliant  illumination  of  a  point 
under  consideration.  Judgments,  which  in  themselves 
are  compatible,  thereby  end  sometimes  in  contradictory 
explanations.  Ihering's  strength  did  not  lie  in  a  calm 
understanding  and  contemplation  of  the  results  of 
his  labor,  permitting  a  harmonious,  proportionate,  and 
complete  view  of  things.  Accordingly,  the  revision 
of  the  first  edition  of  the  "Geist"  here  and  there  mitigated 
these  incongruities  (as  in  the  valuation  of  the  logical 
element  in  law),  but  did  not  conceal  them.  It  may  be 
said  in  general,  that  as  to  all  the  chief  problems  of  general 
jurisprudence,  Ihering's  work  will  admit  of  pointing  out 
such  defects;   for  example,  his  notion  of  rights. 

In  the  second  volume  of  the  "Geist,"  in  his  considera- 
tion of  ancient  Roman  law,  and  under  its  influence, 
Ihering  states  that  legal  relations  are  in  their  essence 
relations  of  dominion  or  power;  that  the  view  that  power 
and  dominion  are  the  sole  starting  points  of  the  whole  of 
private  law  is  the  correct  one;  and  that  the  essence  of 
jurisprudence  lies  i^  this,  that  it  abstracts  everything 
which  does  not  react  upon  these  two  elements.  In  the 
fourth  volume  of  the  "Geist,"  on  the  contrary,  rights  are 
defined  as  interests  protected  by  the  State;  the  stand- 
point of  power  substitutes  for  conformable  purpose; 
and  the  will  theory  is  expressly  overthrown.  In  two 
different  volumes  of  the  same  work,  different  aspects  of 


MERKEL  441 

rights  are  treated  in  a  superior  manner,  but  in  neither 
case  is  the  fundamental  notion  thoroughly  examined. 
It  is  clear  that  the  point  of  view  of  power  does  not  pro- 
vide a  satisfactory  basis  for  the  apportionment  and 
delimitation  of  rights ;  that  it  cannot  give  the  reason  for 
their  extension  or  restriction  and  an  exhaustive  explana- 
tion of  their  change ;  and  that  it  cannot  therefore  be  the 
"ets  Koi  nav'  of  jurisprudence.  On  the  other  hand,  it  is 
also  certain  that  interests  cannot  be  the  substance 
of  rights,  if  these  rights  are  derived  from  the  law.  The 
law  does  not  provide  men  with  interests,  but  endows 
them  with  certain  powers  applicable  to  these  interests. 
This  would  seem  to  be  the  correct  notion,  giving  the 
proper  position  to  both  the  idea  of  interest  and  of  power, 
without  running  into  difficulty.  But  Ihering's  solici- 
tude in  making  logically  accurate  definitions  was  always 
less  than  his  effort  to  bring  out  fully  the  elements  of 
legal  relations.^ 

This  duality  of  viewpoint  in  Ihering  is  also  maintained 
in  his  position  toward  law.  In  his  "Kampf  ums  Recht" 
the  power  idea  has  a  new  and  vigorous  representation 
while  the  "Zweck  im  Recht"  turns  entirely  on  the  idea 
of  purpose. 

The  personality  of  Ihering  speaks  out  most  distinctly 
in  these  two  works.  In  the  "Kampf"  we  see  his  force  of 
character,  his  militant  side,  his  strong  sense  of  legality, 
and  the  whole  dynamic  energy  of  the  man;  in  the 
"Zweck"  his  earlier  intellectual  side  is  portrayed.  One 
like  Ihering  does  not  rest  until  his  theoretical  views  attain 
the  full  expression  of  his  distinctive  character.  The 
significance  of  his  theories  depends  on  the  human  side 
most  prominently  asserting  itself,  and  their  immediate 
operation  depends  on  the  relation  which  the  personal 
element  bears  to  opposing  principles  and  problems  for 

^  Cf.  in  this  connection,  Ihering's  "Scherz  und  Ernst,"  p.  360. 


442  APPENDIX  I 

the  time  being  affecting  it.     How  this  comes  about   in 
Ihering's  final  theories  will  be  shown. 

In  the  "Kampf  urns  Recht,"  as  already  suggested, 
Ihering  expressed  in  a  manner  fitting  his  personality 
the  element  of  force  in  law.  In  an  admirable  work  of 
earlier  origin,  "Das  Schuldmoment  im  Romischen  Privat- 
recht,"  he  already  touched  on  the  questions  raised  in  the 
"Kampf,"  but  he  glossed  them  as  a  historian.  He 
sketched  the  progressive  separation  of  the  penal  ele- 
ment from  the  domain  of  the  civil  administration  of  jus- 
tice, and  he  correctly  saw  in  this  a  species  of  the  process 
of  differentiation  which  underlay  Roman  law  and  which 
exhibited  an  essential  aspect  of  its  onward  development. 
He  soon  observed,  however,  that  with  the  retreat  of 
penal  law,  certain  related  phenomena  appeared,  which 
have  multiplied  and  extended  in  the  modem  world,  and 
show  a  debilitated  energy  of  legal  will  in  the  defence  of 
law  and  rights.  He  was  conscious  of  the  contradiction 
which  this  evolutionary  process  offered  against  his  whole 
intellectual  attitude.  This  contradiction  is  brought  out 
in  his  "Kampf  ums  Recht"  in  sharply  vehement  lan- 
guage, and  the  immense  success  of  this  writing  proved 
that  he  did  not  stand  alone  in  his  views.  It  evoked  a 
widely  disseminated  influence,  which  became  apparent  in 
a  variety  of  endeavors,  and  particularly  in  the  field  of 
criminal  law.  Our  modern  legal  life  gives  evidence  of 
much  sickly  and  pale  cast  of  thought,  against  which  the 
influence  of  this  work  reacts.  Our  law  had  lost  some  of  its 
courage,  and  this  was  especially  true  of  private  law. 
Since  the  social  question  has  come  to  the  fore,  doubt  has 
arisen  as  to  the  universal  justice  of  the  law,  and  this 
question,  taken  in  connection  with  the  inspired  social 
movement  of  the  age,  will  prevent  a  reversion  of  legal 
attitude  in  the  sense  intended  by  Ihering  in  his  "Kampf" 
notwithstanding  its  wide  influence.  ' 


•   MERKEL  443 

That  essay,  for  the  rest,  has  to  do  with  the  validation 
of  rights  and  represents* the  thesis,  that  an  energetic 
defence  against  wrong  is  a  duty.  This  part  of  the  work 
might  be  called  a  homily  on  the  Kantian  text,  "Do  not 
let  your  rights  be  trodden  under  foot  without  resent- 
ment." But  this  sermon  contains  a  legal  philosophical 
core,  and  in  its  essence  is  unassailable.^ 

Ihering  based  his  theory  of  duty  in  the  maintenance  of 
one's  rights,  firstly,  on  the  connection  between  rights 
and  personality;  and  secondly,  on  the  solidarity  of  law 
and  rights.  The  relation  of  rights  to  personality  is 
admirably  stated.  In  truth,  our  rights  involve  a  parcel 
of  our  social  worth,  our  honor.  Whoever  violates  our 
rights,  attacks  our  worth,  our  honor. 

If  rights  had  not  been  accepted  as  isolated  interests, 
as  appears  in  the  fourth  volume  of  the  "Geist,"  Ihering 
would  not  have  hit  upon  personality,  and  it  would  not 
have  been  possible  for  him  to  take  the  position  that  the 
assertion  of  a  right  is  moral  self-assertion.  Ihering's 
theory  regarding  the  struggle  for  rights  has  been  assailed 
frequently,  but  if  certain  exaggerations  in  the  form  of 
statement  are  laid  aside,  there  is  only  one  standpoint 
from  which  it  may  be  attacked  consistently.  This  is  the 
Christian  point  of  view,  in  so  far  as  it  requires  that 
when  our  coat  is  taken  away  we  shall  also  surrender  to 
the  taker  our  cloak.  Ihering's  ethics,  an  ethics  of  asser- 
tion of  life  and  will,  does  not  harmonize  with  this  de- 
mand ;  but  it  does  express  the  spirit  which  has  created 
the  law,  and  lives  in  it.  The  energy  with  which  rights 
•  The  present  writer  has  already  developed  the  legal  philosophical 
ideas  of  this  work,  in  part,  in  various  works.  But  although  Ihering 
may  have  been  familiar  with  the  latest  of  these  writings,  it  is  cer- 
tain that  they  did  not  have  the  slightest  influence  on  him.  Ihering 
had  to  find  his  way  always  by  his  own  efforts.  He  therefore  con- 
sistently carried  behind  his  own  flag  his  own  equipment;  the  same, 
unfortunately,  cannot  be  said  of  all  authors. 


444  APPENDIX  I 

maintain  themselves  against  wrongs  belongs  to  the  same 
system  of  assertiveness  in  life  as  that  by  which  law 
defends  itself  against  wrong.  The  same  human  inter- 
ests are  involved  in  both  cases.  This  brings  us  to  the 
second  proposition:   the  solidarity  of  law  and  rights. 

That  this  solidarity  ever  could  have  been  misunder- 
stood is  curious.  Nevertheless,  a  right  detached  from 
law,  through  which  it  gains  expression,  and  derives  its 
life  and  being,  is  unthinkable.  The  idea  that  there 
may  be  a  penal  violation  of  a  right  which  does  not 
come  in  contact  with  law  is  absurd,  and  an  essential  dis- 
tinction between  pure  (penal)  civil  wrongs  and  criminal 
wrongs  is  therefore  impossible.  For  this  reason  the 
functions  of  civil  protection  in  a  certain  degree  coincide 
with  those  of  criminal  protection,  as  Ihering  correctly 
understood. 

What  this  same  work  says  regarding  the  force  element 
in  law  and  the  struggle  in  which  the  law  is  formed, 
changed,  and  asserted,  is  beyond  attack. 

Of  greater  importance  in  relation  to  Ihering's  final 
system  of  thought  than  the  "Kampf  urns  Recht,"  is  his 
"Zweck  im  Recht."  This  work  grew  out  of  the  labor 
on  the  "Geist"  and  is  its  culminating  point.  Here,  the 
child  slew  its  mother.  In  his  development  of  the  theory 
of  rights,  the  thought  of  the  dependence  of  legal  rules  on 
social  purposes  seized  him  with  such  power,  and  brought 
about  such  a  change  in  his  general  views,  that  it  now 
appeared  to  him  to  be  the  chief  problem  of  his  life  to  give 
this  idea  adequate  treatment  in  an  ^independent  work. 
He  thought  that  he  had  found  the  principle  from  which 
all  legal  establishments  take  their  origin,  and  by  refer- 
ence to  which  they  may  be  understood.  He  found  the 
position  of  that  natural  science  of  law,  which,  from  the 
beginning,  had  been  in  his  mind  as  the  object  of  his 
labors.     Instantly,  there  arose  a  program  of  treatment. 


MERKEL  445 

and  it  extended  to  colossal  proportions.  Extending 
beyond  the  limits  of  a  mere  legal  philosophy,  it  widened 
out  as  a  project  of  a  phenomenology  of  the  whole  ethical 
and  social  world.  This  work  was  to  demonstrate  this 
entire  domain  as  the  creation  of  human  purpose,  and 
this  creation  itself,  and  its  products,  were  to  be  set  before 
the  eyes  of  the  reader  in  the  unified  system  of  social  life. 
Ihering  distinguishes  the  objects  resting  on  egoistic 
self-assertion  (that  is  to  say  physical,  economic,  and  legal 
objects)  of  the  individual  from  those  based  on  social 
self-assertion.  The  latter  correspond  to  ethical  objects  of 
individual  self-assertion.  This  logical  classification  is 
adopted  by  Ihering  as  the  plan  of  a  doctrine  of  evolution. 
He  seeks  to  show  how  "one  object  is  connected  with  an- 
other, the  higher  to  the  lower;  and  not  simply  connected, 
but  the  one  derived  from  the  other  as  a  consequence  of 
itself  by  the  force  of  necessity."  In  the  beginning,  there 
is  egoism.  This  is  "the  mother,  from  which  everything 
issues,  fructified  by  the  force"  of  historically  determined 
conditions.  Serving  itself,  individual  egoism  transforms 
into  social  ends,  and  produces  the  material  for  the  legal 
structure.  This  is  the  organization  of  social  power  con- 
trolled by  the  State  for  these  objects,  that  is  to  say,  for 
security  of  the  social  conditions  of  life.  The  ethical  spirit, 
which  is  characterized  by  the  identity  of  individual  ends 
with  objects  of  the  community,  makes  its  entrance  then 
into  this  legal  structure  for  the  purpose  of  setting  up  therein 
its  dominion.  That  which  is  conformable  to  law,  and 
what  is  ethical,  therefore,  are  not  contrary  to  what  con- 
forms to  purpose.  They  simply  designate  "the  deepest 
and  most  permanent  stratum  of  a  matured  expediency 
of  ends  in  the  social  organization."  Furthermore,  they 
are  not  an  original  endowment,  not  a  "lex  innata,"  but 
the  product  of  an  adjustment  to  definite  social  condi- 
tions.    There  is  therefore  no  absolute  ethics,  any  more 


446  APPENDIX  I 

than  a  system  of  absolute  ends.  Every  evolutionary 
stage  of  society  has  its  own  objects,  and  accordingly  its 
own  fortune,  and  its  own  standards  of  ethics;  and  on 
each  page  turned  over  by  the  history  of  humanity,  there 
appears  always  the  word  "verte."  The  ends  achieved 
admit  of  new  purposes;  the  ethics  attained  changes  to  a 
new  ethical  creed. 

The  ethical  and  legal  philosophy  of  Ihering  with  which 
we  have  to  deal  is  that  of  social  utilitarianism .  This  utili- 
tarianism does  not  imply  scepticism,  or  a  destructive 
attitude  toward  the  ethical  law.  The  theoretical  utili- 
tarian is  a  practical  ideahst,  and  Ihering  intends  that  his 
elucidation  of  ethical  sources  shall  not  diminish  the  power 
of  ethics  but  elevate  it. 

This  work  did  not  gain  the  reception  which  Ihering 
had  hoped ;  especially  not  among  professional  specialists 
who  failed  to  see  in  it  either  a  juristic  or  a  philosophical 
contribution.  This  attitude  of  the  specialists,  led  by 
Windscheid,  caused  Ihering  to  give  up  the  further 
development  of  this  program,  and  to  apply  himself  to 
labors  of  more  direct  interest  to  jurists. 

It  would  be  a  mistake,  however,  to  suppose  that  the 
"Zweck  im  Recht"  was  without  influence  in  the  juristic 
world.  Its  relation  to  the  general  content  of  modern 
thinking  is  too  great  to  admit  that  belief.  Unfortu- 
nately, this  is  true  not  only  of  its  merits,  but  also  of 
its  defects.  The  influence  of  the  demerits  of  the  work 
is  easily  recognized  in  present-day  juristic  literature. 
Modern  naturalism  has  also  made  its  entrance  in  this 
field  and  found  a  support  in  the  "Zweck  im  Recht." 
This  work  has  lent  to  naturalism  the  purpose  idea,  but 
employed  in  such  a  manner  as  to  utilize  not  the  strength 
of  Ihering's  thesis  but  its  weakness.' 

^  The  present  writer's  "Festschrift"  for  //tenng  entitled  "Vergelt- 
ungsidee  und  Zweckgedanke"  deals  with  this  point. 


MERKEL  447 

The  hostile  judgment  of  the  juristic  critic  was  not 
deeply  thought  out.  There  was  neither  a  recognition 
of  the  importance  of  this  work  of  Ihering's,  nor  was  an 
accurate  account  given  of  its  deficiencies.  Thus  one 
reviewer  could  only  see  in  this  labor  "a  loose  construc- 
tion of  a  clever  idea"  {Nation),  while,  on  the  contrary, 
it  exhibits  a  wonderful  unity  and  cohesion  in  its  arrange- 
ment of  thought.  Again,  the  question  has  been  put, 
"Where  and  when  will  all  the  things  come  to  pass  that 
Ihering  writes  about?"  and  the  answer  is  given,  that  they 
have  an  existence  only  in  Ihering's  mind  (Dahn).  It 
might  be  replied,  from  Ihering's  point  of  view,  that  these 
things  have  happened  everywhere  that  law  and  ethics 
have  been  developed.  His  work  was  intended  as  a  com- 
pendium of  the  history  of  evolution,  a  summary,  giving 
the  typical  examples  of  its  complete  statement.  Such  a 
program  does  not  admit  of  essential  criticism.  National 
dissimilarity  in  laws  does  not  alter  the  proposition,  since 
this  diversity  does  not  exclude  a  common  element. 
Certain  identical  functions  are  universally  essential  to 
law,  because  in  these  functions  similar  necessities  and 
similar  mental  powers  are  brought  to  expression.  These 
agencies  have  everywhere  been  determinative  in  the 
creation  of  the  legal  world,  and  it  is  Ihering's  purpose  to 
make  conspicuous  their  creative  reality.  Another  ques- 
tion is  presented,  whether  his  delineation  is  universally 
applicable,  and,  in  general,  whether  this  work  is  suited 
to  provide  an  insight  into  this  creative  history.  More 
favorable  judgment  has  been  rendered  here  on  the  philo- 
sophical side  than  on  the  juristic.  The  elegant  and  dis- 
tinguished philosopher,  Eucken,  has  aptly  remarked 
that  the  important  problem  essayed  by  Ihering  entered 
a  new  phase  in  this  work.^  According  to  him,  a  new 
series  of  ideas  is  constructed,  new  groups  of  facts  are 

'  Allgemeine  Zeitung,  1883,  Nos.  362-3. 


448  APPENDIX  I 

brought  forward,  and  the  questions  invoked  receive  a 
new  and  more  sharply  defined  form.  He  promotes  a 
recognition  of  the  importance  of  the  essential  value  of 
the  work  and  praises  its  execution. 

Comparing  Ihering's  performance  with  other  utilitarian 
systems,  we  find  as  its  chief  characteristic  the  accentua- 
tion of  the  notion  of  society  and  social  purpose,  in 
agreement  with  certain  fundamental  trends  of  modern 
science,  and  the  energetic  reduction  of  legal  and  ethical 
problems  to  this  basis.  This  social  utilitarianism  is  far 
superior  to  the  purely  individualistic  utilitarianism  of 
Bentham  who  was  not  able  to  explain  ethical  motives 
as  against  egoistic  impulses,  or  ethical  norms  as  such. 
Again,  Ihering's  central  thought  of  social  utilitarianism 
had  never  before  the  "Zweck"  received  such  a  powerful 
statement,  and  at  the  same  time,  such  a  comprehensive 
representation  founded  on  the  materials  adduced.  Iher- 
ing's work  has  been  contrasted  with  Spencer's  and  rat-^ 
above  it.  Whether  the  "Data  of  Ethics"  was  prior 
to  Ihering's  work  I  do  not  know,  but  the  dominant 
thought  of  social  utilitarianism  was  not  treated  by 
Spencer  with  the  definition  and  clearness  of  Ihering's 
work.  There  is  apparent  in  Spencer's  system  a  certain 
amount  of  indetermination,  and,  as  a  result,  a  defect  of 
treatment  such  as  cannot  be  charged  against  Ihering: 
in  this,  that  the  opposition  between  moral  conduct  of 
individuals  (or  to  use  the  language  of  Ihering,  their 
ethical  self-assertion)  and  their  egoistic  conduct  is  not 
fully  appraised.  In  other  respects  both  writers  exhibit 
a  frequent  harmony  of  view.* 

At  this  day,  this  social  utilitarianism  has  become  a 
mighty  force  in  the  domain  of  science,  to  which  every 

^  Cf.  "Data  of  Ethics,"  Sees.  4-6,  63.  There  is  a  diflference 
between  them,  of  course,  with  reference  to  the  question  of  the 
proper  scope  of  State  activity. 


MERKEL  449 

discussion  turns,  which  would  be  more  than  a  mere 
working-over  of  details.  It  derived  from  Ihering  a  sup- 
port not  to  be  despised.  That  Ihering  was  a  man  with 
only  an  imperfect  philosophical  training  does  not  alter 
the  fact  that  it  was  a  man  of  such  sense  of  reality  who 
has  given  us  an  inspired  account  of  this  system  as  the 
product  of  his  experiences  and  labors. 

A  general  estimate  of  Ihering's  philosophical  position 
would  be  out  of  place  here,  but  some  additional  obser- 
vations are  necessary  with  respect  to  special  phases  of 
his  system  in  order  that  my  valuation  of  his  performances 
may  not  be  without  critical  value.  Anyway,  my  object 
is  not  to  praise,  but  to  characterize. 

A  thought  touches  the  relation  of  individual  person- 
ality to  society  in  Ihering's  system.  According  to  him, 
human  beings  enter  the  world  and  begin  their  lives  as 
pure  egoists.  From  this  foundation  he  derives  a  legally 
or?  anized  society  which  generates  an  ethical  personality. 
Einical  personality  is  a  later  birth  which  takes  possession 
of  the  legal  system  as  a  completed  construction.  The 
world  of  law  cannot,  however,  be  conceived  without 
ethical  support,  and  it  has  nowhere  been  found  without 
the  co-operation  of  ethical  forces.  W/e  thrive  here  in 
a  circle.  Ihering,  the  historian,  has  more  correctly  appre- 
hended the  matter  than  Ihering,  the  dogmatist.  In  this 
connection,  as  well  as  in  many  others,  it  is  possible  to 
oppose  his  "Zweck"with  his  "Geist"  (1, 118seq.,263seq.; 
1 1 ,  61-4th  edition) .  Social  impulses  are  not  the  products, 
but  the  conditions  of  society;  they  are  not  implanted 
in  individuals  in  a  disciplinary  world  of  legality  from 
without,  but  have  developed  in  the  individual  parallel 
with  social  organization,  due  to  the  reciprocal  influence 
between  the  individual  and  his  surroundings.^"     Ihering 

*°This  point  was  developed  in  detail  in  my  "Vergeltunsidee  und 
Z  weckgeda  n  ke . " 


450  APPENDIX  I 

also  does  not  make  any  explanation  of  the  initiative  of 
individuals  in  the  domain  of  ethics.  And  yet  the  inquiry 
of  the  ancient  systems  of  ethics  returns.  A  new  ethos 
has  not  been  brought  into  the  world  within  our  reckoning 
of  time  by  society  and  its  organs,  but  by  a  Christ. 

Another  thought  relates  to  the  position  of  the  purpose 
idea  in  Ihering.  His  notion  in  general  is  that  of  con- 
scious purposes.and  thesocial objects  to  whichhe  attaches 
the  law  are  regarded  as  the  associated  ends  of  individuals. 
It  frequently  appears  that  the  ideas  of  purpose  enter- 
tained at  the  beginning  evolve,  and  at  the  end  do  not 
reach  adequate  expression,  or  perhaps  are  not  realized 
at  all.  They  set  in  motion  forces  which,  under  the  inter- 
play of  new  agencies,  bring  about  results  which  may 
be  far  from  the  original  purpose.  Again,  institutions 
generated  by  definite  ideas  of  purpose  may  in  the  course 
of  time  alter,  and  later  be  maintained  by  an  entirely 
different  connection  of  thought  than  that  which  favored 
their  existence.  Naturally,  all  this  was  not  unknown 
to  Ihering;  but  the  method  by  which  purpose  officiates 
in  his  view  as  an  explanatory  principle,  conceals  the 
evolutionary  historical  meaning  of  the  matter  and  is  a 
source  of  a  great  deal  of  misunderstanding.^^  Further 
a  variety  of  institutions  find  their  justification  in  the 
forum  of  history  —  and  one  thinks  here  of  slavery  — 
not  in  the  purpose  which  evoked  them,  but  in  their 
importance  for  an  advancing  development  of  cultural 
life.  Ihering  here  resorts  to  "objective  purpose."  This 
objective  purpose  raises  a  number  of  questions  which 
do  not  find  an  exhaustive  answer,  and  which  in  serious 
app  'jation  would  lead  to  modifications  of  his  system. '^ 

"  See  Wundi,  "Ethik,"  pp.  98,  103,  131. 

^^  An  approach  toward  certain  systems  combated  by  Ihering 
would  be  unavoidable.  The  concept  of  society  (the  sum  of  indi- 
viduals) would  be  different.     Teleological  speculation,  to  which  the 


MERKEL  451 

Further  comment  in  this  direction  may  be  omitted, 
to  give  way  only  to  the  most  fundamental  philosophical 
and  juristic  objections  urged  against  Ihering's  theory 
of  purpose.  These  objections  may  be  found  in  theories 
which  regard  the  development  of  law  and  morals  with 
Leibnitz  as  the  "progressive  disclosure  and  clarification 
of  what  from  the  beginning  has  lain  dormant  as  an  eternal 
law  in  the  unconscious  mentality  of  individuals";  an 
emergence,  as  it  were,  of  a  finished,  harmonious,  and 
valid  system  of  concepts  and  principles  in  the  conscious- 
ness of  the  race.  In  the  domain  of  legal  science,  criticism 
is  based  on  various  forms  of  our  juristic  Scholasticism. 
The  a  priori  method  of  philosophy,  and  Scholasticism 
in  legal  science,  are  internally  related,  and  may  be  con- 
tested from  the  same  point  of  view.  Indeed,  our  Scholas- 
ticism, juristic  logicality,  or  "jurisprudence  of  concepts," 
has  its  own  sources.  These  sources  are  found  in  the 
technical  problems  of  jurisprudence  as  Ihering  has  ably 
described  them,  and  again  in  the  inclinations  of  a 
concept-building  reason  which  overvalues  its  progeny, 
its  concepts,  and  regards  them  as  entities  of  independent 
worth  having  their  own  existence  and  a  predestined 
fruitfulness.  It  is  therefore  an  ineradicable  accom- 
paniment of  our  dogmatic  system;  it  is  like  a  smoke 
which  rises  above  and  conceals  its  fire.  If  one  would 
seek,  however,  for  a  philosophical  foundation  of  this 
jurisprudence  of  concepts,  resort  would  be  had  to  theories 
such  as  indicated ;  for  it  assumes  a  stationary,  a  priori, 
and  incontestable  world  of  ideas,  in  which  the  governing 

idea  of  objective  purpose  belongs,  irresistibly  compels  th  '  npres- 
sion  that  it  is  not  the  nature  of  individuals  with  which  it  deals,  but 
the  race;  that  is  to  say,  society  in  an  entirely  diflferent  sense  than  that 
which  regards  it  as  the  totality  of  its  parts  for  the  time  being.  This 
alteration  in  the  notion  of  society,  however,  would  involve  an  advance 
towards  idealism. 


452  APPENDIX    I 

plumb-line  for  the  regulation  of  a  real  world  is  to  be 
found.  Only  on  this  premise  can  this  world  have  any 
meaning  for  the  logicians  where  at  one  time  the  pro- 
tection of  definite  interests  is  inconceivable,  and  at 
another  their  injury  is  conceptually  necessary;  again, 
where  at  one  time  they  deduce  distinctions  and  limita- 
tions from  ideas,  and  at  another  turn  when  they  seek 
concepts  which  properly  belong  to  definite  words  and 
names.  This  philosophy  and  this  Scholasticism  are 
scientifically  shattered  by  the  evidence  that  law  in  its 
essence,  and  not  by  way  of  exception,  here  or  there,  but 
always  and  everywhere,  has  an  alogical  nature.  Ihering 
produced  this  proof  in  his  "Zweck"  by  making  prominent 
the  reality  factors  in  law.  Yet,  his  proof  requires  an 
addition.  This  is  furnished  by  a  consideration  of  the 
compromise  character  of  law,  and  the  dependence  of 
this  compromise  on  changing  forces  which  mock  at  any 
derivation  credited  to  concepts,  and  do  not  admit  of 
adequate  expression  in  a  system  of  concepts. ^^ 

Ihering's  opposition  to  the  concept  system  grew  on  him, 
and  in  the  latter  part  of  his  life  he  attacked  this  cultus 
with  all  the  vehemence  of  his  nature.  In  his  "Scherz 
und  Ernst"  he  covered  it  with  the  biting  acid  of  derision. 
Ihering  erroneously  supposes  it  peculiar  to  this  system 

*^  The  "Zweck  im  Recht"  does  not  deal  with  the  compromise 
character  of  law.  Ihering  proceeds  generally  on  the  basis  of  a 
harmony  of  the  normal  interests  of  individuals  which,  as  assumed, 
does  not  exist.  According  to  him,  the  coincident  purposes  of  indi- 
viduals create  social  purpose  which  generates  law.  The  postulate 
of  a  quiescent,  logically  unified  system  of  concepts  which  constantly 
and  symmetrically  embraces  the  world  of  practical  interests,  would 
be  consistent  with  this  interpretation.  In  the  "Kampf  urns  Recht," 
on  the  contrary,  Ihering  develops  a  position  which  shows  the  compro- 
mise nature  of  law.  See  my  "Recht  und  Macht"  in  Schmoller's 
"Jahrbuch  fiir  Gesetzgebung,  Verwaltung,  und  Volkswirtschaft," 
V.  Iseq.;  v.  HoUzendorff's  "Enzyklopadie  der  Rechtswissenschaft," 
5th  ed.,  p.  16  seq.;  and  cf.  my  "Juristische  Enzyklopadie,"  Sec.  40. 


MERKEL  453 

to  deal  with  Romanistic  literature,  while  in  fact  it  makes 
its  home  in  all  departments  of  legal  science.  The  formal 
trend  in  law  — and  it  is  here  in  question,  —  flourishes 
as  well  in  criminal  law  and  public  law  as  among  the 
Romanists.  Ihering,  therefore,  is  wrong  in  attributing 
it  to  Savigny  and  Puchta.  They  seem  to  him  to  be 
the  leaders  of  the  Muses  who  direct  the  dance  from  the 
heights.  He  is  not  disinclined  to  relegate  them  and  the 
majority  of  their  followers  to  a  conceptual  heaven,  or 
rather,  a  conceptual  pit. 

Laying  aside  the  extravagances  of  the  work  last  men- 
tioned, the  later  works  of  Ihering,  as  against  his  earlier 
labors,  exhibit  in  a  form  more  and  more  sharply  defined 
that  which  will  be  permanent  in  him;  namely,  the 
realistic  aspect  of  legal  thinking  applied  to  the  ends  of 
practical  life  and  governed  by  the  forces  which  set  these 
objects  in  motion  and  create  the  institutions  of  society. 

If  a  further  comparison  with  Savigny  may  be  per- 
mitted, I  would  say  that  Savigny 's  historical  position 
was  a  more  favorable  one  than  Ihering's.  Savigny 's 
labors  are  the  central  point  of  a  new  experience  in  the 
world  of  Romanism  in  the  first  half  of  his  century,  and 
had  an  application  in  all  directions;  while  the  same 
fortunate  situation  did  not  befall  the  investigations  of 
Ihering.  Again,  Ihering's  work  has  a  universal  relation 
to  the  great  problem  of  the  mental  sciences  ^ — mankind, 
an  understanding  of  its  conditions,  and  the  laws  of  its 
own  conduct.  The  value  of  his  work  in  dealing  with 
this  problem  is  for  the  future  to  determine. 


APPENDIX  II 

FINALITY  IN  THE  LAW  ' 
By  L.  Tanon  2 

Sec.  1.  Iherings  law  as  a  means  to  an  end.  The 
celebrated  jurist  and  historian,  Ihering,  deserves  a 
special  place  with  reference  to  the  Historical  School. 
He  not  only  renewed  the  attack  on  the  views  of  Savigny 
and  his  leading  disciples,  amplifying  criticism  of  this 
school  with  the  rich  colors  of  his  imagination  and  style; 
but  he  constructed  upon  ideas  of  his  own,  and  after  a 
different  interpretation  of  the  evolution  and  facts  of 
history,  a  complete  system  of  Philosophy  of  Law.  In 
this  system,  he  sets  up,  over  against  the  too  idealistic 
concept  of  unconscious  development  of  the  juridical 
order  proceeding  from  the  hidden  forces  residing  in  the 
character  of  the  people,  a  theory  not  less  exclusive, — 
absolute  finality,  and  a  development  of  law  always  con- 
scious of  objective  ends  which  it  is  called  upon  to  realize.' 

^The  text  translated  is  pp.  44-81  of  "L'Evolution  du  Droit  et  la 
Conscience  Sociale"  (part  second),  third  revised  and  enlarged  edi- 
tion, in  "Bibliotheque  de  Philosophic  Contemporaine,"  Paris  (Felix 
Mean,  1911). 

The  translation  is  by  Albert  Kocourek,  Lecturer  on  Jurispru- 
dence in  Northwestern  University,  and  member  of  the  Editorial 
Committee. 

2  President  of  the  Court  of  Cassation  of  France. 

'  Ihering  is  especially  known  in  France  on  account  of  his  "Geist 
des  Romischen  Rechts  auf  den  verschiedenen  Stufen  seiner  Ent- 
wickelung,"  translated  into  French  as,  "L'Esprit  du  droit  romain," 
2d  ed.,  Paris,  1880;  his  "Kampf  ums  Recht,"  translated  as  "Le 
Combat  pour  le  Droit,"  Paris,  1875;  and  his  miscellaneous  writings 
published  by  his  faithful  and  learned  translator,  M.  de  Meulenaere, 
under  the  title,  "Etudes  Complementaires  de  L'Esprit  du  Droit 
Romain."     See  particularly,  in  the  last  work,"  Du  R6le  de  la  Volonte 


456  APPENDIX    II 

Ihering  asserts  at  the  beginning  of  this  work  the  prin- 
ciple of  finahty,  which  he  apphes,  in  this  volume,  to  the 
law,  and  in  the  second  volume,*  to  morals.  This  inver- 
sion of  the  natural  order  of  treatment,  in  a  system  which 
assigns  one  and  the  same  principle  to  morals  and  law, 
has  introduced  some  confusion  in  his  book,  numerous 
repetitions,  and  certain  contradictions.  This  results  from 
the  method  adopted  by  the  author  in  composing  this 
work,  and  in  pursuing  his  subject  progressively  in  the 
course  of  publication. 

The  object  is  the  governing  principle  of  the  law;  there 
is  no  rule  of  law  which  does  not  owe  its  origin  to  a  prac- 
tical motive,  to  an  end.  A  double  law  governs  the  sen- 
sible world:   the  law  of  causality  for  inanimate  beings; 

dans  la  Possession,"  A.  Maresq,  1896.  The  first  volume  of  Ihering' s 
"Der  Zweck  im  Recht,"  Leipzig,  1877-1883,  2  vols.,  (2d  ed.,  1884- 
1886),  has  been  translated  under  the  misleading  title,  "L'Evolution 
dans  le  Droit,"  A.  Maresq,  1901.  This  work  at  once  became 
famous.  It  was  briefly  reviewed  by  M.  Durkheim  {Revue  Philoso- 
pJiique,  2  sem.,  1897),  and  afterwards  by  M.  Aguilera  in  his  book, 
"L'Idee  du  Droit  en  Allemagne  depuis  Kant  jusqu'^  nos  Jours," 
Paris  (F.  Alcan),  1893,  p.  220  seq.  It  has  also  been  the  subject  of 
an  interesting  analysis  by  M.  Bougie  in  a  study  on  "Les  Sciences 
Sociales  en  Allemagne,"  Paris  (F.  Alcan),  1896.  See,  among  the 
critical  studies  of  this  work  in  Germany,  the  book  of  Felix  Dahn, 
"Die  Vernunft  im  Recht,  Grundlagen  der  Rechtsphilosophie," 
Berlin,  1879,  which  contains,  as  the  title  indicates,  the  personal  view 
of  the  author  on  the  Philosophy  of  Law.  [See  also  the  able  account 
of  Professor  Mimroe  Smith  of  Columbia  University  in  Political 
Science  Quarterly,  xii,  21,  —  Tr^.  M.  de  Meulenaere  has  also  trans- 
lated one  of  Ihering's  posthumous  works,  "Vorgeschichte  der  In- 
doeuropaer,"  under  the  title,  "Les  Indo-Europeensavant  L'Histoire," 
Paris,  1895.  He  also  translated  another  posthumous  work  which  is 
only  the  beginningof  a  "Histoirede  L'Fvolution  du  Droit  Romain" 
("Entwickelungsgeschichte  des  Romischen  Rechls — Einleitung  und 
Verfassung  des  Romischen  Hauses,"  Leipzig,  1894),  which  Ihering 
had  engaged  to  write  for  a  project  of  Binding's,  and  of  which  he  com- 
posed only  the  introduction  and  some  chapters  relative  to  the  Roman 
household. 

^  [Xot  translated  in  this  series.] 


TANON  457 

the  law  of  finality  for  animate  creatures.  Nothing  hap- 
pens in  the  world  without  a  cause.  An  impulse  of  will 
without  cause  is  as  inconceivable  as  a  movement  of 
matter  without  cause.  The  only  difference  is,  that 
cause  is  mechanical  in  the  material  world,  while  in 
will  it  is  psychological.  For  the  will,  the  cause  is 
final  —  it  is  the  end. 

The  most  general  end  of  law  is  a  guaranty  of  the  con- 
ditions of  social  life  by  the  coercive  power  of  the  State. 
These  conditions  may  be  divided  into  three  classes: 
extra-juridical,  mixed,  and  juridical.  Extra-juridical 
conditions  are  those  which  impose  on  man  the.  natural 
surroundings  in  which  he  lives ;  the  law  has  no  power  over 
these  conditions;  it  operates  only  on  man  and  his 
efforts.  Mixed  conditions  concern  the  maintenance  and 
conservation  of  society,  and  its  normal  development, 
by  the  organization  of  labor,  commerce,  and  industry; 
the  law  ought  only  exceptionally  to  come  to  the  assistance 
of  the  natural  activities  which  minister  to  these  various 
objects.  Juridical  conditions  are  those  whose  guaranty 
society  assigns  exclusively  to  the  law. 

When  it  is  said  that  the  law  guarantees  the  conditions 
of  social  life,  it  is  not  by  that  to  be  understood  that  it 
ought  to  regulate  them  so  as  to  apply  to  all  of  them  with- 
out distinction  the  sanctions  which  it  provides.  The 
law  relates  only  to  juridical  conditions.  This  concept 
of  purpose  in  the  law  and  its  adaptation  to  the  conditions 
of  life,  taken  in  its  wide  generality,  leaves  little  open  for 
criticism,  and  is  perhaps  accepted  by  all  those  who  seek 
to  establish  the  juridical  order  on  a  positive  basis.  But 
it  has  received  in  the  second  volume  of  this  work  (devoted 
more  especially  to  morals),  and  in  later  writings  of  the 
author,  enlargements  which  demand  extended  reserva- 
tions. These  reservations  principally  apply  to  the 
philosophical  generalizations  of  the  author  touching  the 


458  APPENDIX   II 

generative  forces  of  morals  and  law,  and  regarding  exter- 
nal causality.  In  this  external  causality  Ihering,  at 
the  last,  thinks  that  he  has  found  a  complete  explanation 
of  the  creative  impulses  of  law  and  morals,  and  from  it 
he  derives  the  evolution  of  the  whole  of  social  life.  It 
seems  that  the  bearings  of  Ihering's  doctrine  were  not 
always  well  understood  by  him,  and  one  is  able  to  point 
out  in  the  elaboration  which  he  makes  in  the  progress 
of  his  work  a  considerable  number  of  variations.  The 
position  of  the  author,  manifestly,  has  had  a  course  of 
development,  and  has  been  subject  to  modification  and 
transformation  since  his  "Spirit  of  Roman  Law,"  and  up 
to  the  time  of  his  last  work.  The  progressive  advance 
of  his  thought  may  already  be  noted  in  the  two  volumes 
of  which  the  present  work  is  a  part,  published  six  years 
apart,  and,  later,  in  a  more  marked  fashion  in  the  writ- 
ings which  followed.  Whilst  he  distinguishes  clearly  in 
the  first  volume  (the  present  work)  between  material  and 
ideal  conditions  of  life,  and  appears  to  recognize  in  human 
nature  a  duality  consisting  of  egoistic  instincts  and  moral 
and  disinterested  motives,  yet  in  the  second  volume  he 
lays  stress  throughout  upon  the  egoistic  forces,  from 
which  he  derives  all  others.  In  his  later  writings  he 
emphasizes  sovereign  action  in  evolution,  the  material 
conditions  of  life,  and  external  causality  from  which, 
in  the  last  analysis,  he  deduces  all  the  elements  of  social 
life. 

M.  Neukamp  in  his  "Introduction  k  L'Histoire  de 
L'Evolution  du  Droit,"  thinks  that  in  this  connection  he 
has  discovered  an  inconsistency  in  the  last  work  of 
Ihering  on  the  evolution  of  Roman  law.  He  observes 
that  in  different  passages  of  this  work,  the  author  seems 
now  to  admit  a  double  causality,  internal  and  external, 
and  then  to  hold  to  external  causality  alone.  In  a  begin- 
ning passage,  Ihering  recognizes  two  kinds  of  efficient 


TANON  459 

causes  in  the  creation  of  law:  first,  internal  impulses, 
the  character  of  the  people,  their  habits  of  feeling  and 
thinking,  their  degree  of  culture  in  a  given  age;  and 
second,  external  impulses  proceeding  from  the  economic, 
political,  and  social  conditions  of  the  same  people  in  the 
same  age.  In  other  places,  on  the  contrary,  he  asserts 
that  the  object  of  the  science  of  law  is  to  replace,  every- 
where, the  point  of  view  of  internal  spontaneity  by  exter- 
nal causality;  and,  as  the  special  purpose  of  his  book, 
he  destroys  the  prevalent  theory  in  the  history  of  law, 
according  to  which,  evolution  moves  from  within  out- 
wardly, by  substituting  the  contrary  idea  of  an  external 
force  of  the  world  exercised  on  the  law. 

This  contradiction  is  not  simply  apparent.  Ihering 
fully  recognizes  in  history  the  existence  of  two  kinds  of 
phenomena,  internal  and  external,  which  appear  to 
exercise,  concurrently,  an  influence  upon  the  law,  in  the 
course  of  its  evolution.  But,  for  him,  that  is  only  a 
matter  of  appearance ;  it  is  not  the  substance  of  the  thing. 
Internal  phenomena,  such  as  the  character  of  the  people, 
their  habits  of  thinking  and  feeling,  which  he  still  regarded 
in  his  "Spirit  of  Roman  Law"  as  established  facts,  as  an 
ultimate  principle  of  explanation,  resolve  themselves 
purely  and  simply  by  a  final  analysis,  into  external 
phenomena  from  which  they  spring.  A  part  of  his  other 
book,  the  "Indo-Europeens  avant  L'Histoire,"  wherein 
he  discusses  the  Aryans,  their  migration,  and  the  Baby- 
lonian civilization,  is  devoted  to  the  illustration  of  this 
thesis.  We  are  not  able  here  to  enter  on  a  detailed 
examination  of  the  efi"ort  to  reconstruct  an  ante-historical 
past,  or  the  bold  hypotheses  upon  which  he  relies.  In 
that  book  one  may  read  the  ingenious  and  brilliant  dis- 
closures in  which  the  author  has  ferreted  out  the  entire 
Babylonian  civilization  from  a  habitat,  the  soil,  the 
proximity  of  the  sea,  and  the  manufacture  of  brick  and 
the  building  of  ships. 


460  APPENDIX    II 

That  work  shows  the  same  ultra-positivistic  tendencies 
of  Ihering  which  one  remarks  in  the  second  volume  of 
the  present  work,  with  its  determination  of  m.otives  of 
human  conduct,  and  the  final  unity  to  which  he  restores 
them  all.  He  finds  this  unity  in  mere  egoism.  One 
may  believe,  if  he  restricts  himself  to  the  present  volume, 
that  Ihering  admits,  alongside  of  egoism,  another  senl^i- 
ment  equally  natural  and  coexistent  with  it  —  the  feeling 
of  disinterestedness,  detachment  from  the  self,  or  under 
its  most  usual  modern  name,  altruism.  But  we  see,  in 
the  second  volume,  that  there  this  is  not  Ihering's  real 
thought.  Egoism  is  proclaimed  as  the  sole  primitive 
and  natural  sentiment,  and  it  is  from  this  feeling  that 
social  life  has  derived  all  the  others,  different  in  appear- 
ance, but  yet  rigorously  connected.  Hard  and  bare 
in  the  man  of  nature,  transformed  in  civilized  man, 
purified  and  especially  elevated  in  the  social  body,  it 
remains  always  egoism,  fundamental,  and  primitive. 

Ihering  develops  this  idea  in  all  its  forms  and  with  a 
character  more  and  more  absolute  in  his  later  writings. 
Nature  has  implanted  egoism  in  the  heart  of  man ;  history 
alone  has  drawn  from  him  the  moral  sense  and  the  feeling 
of  justice.  The  egoist  is  the  product  of  nature;  the 
man  of  morals  is  the  product  of  society.  Morals  is  only 
egoism  in  its  highest  form ;  it  is  a  repetition  of  the  same 
thought  raised  to  a  higher  degree  of  development. 
According  to  a  formula  which  he  delights  to  repeat,  it 
is  not  the  sentiment  of  justice  which  has  created  the  law, 
but  the  law  has  created  the  feeling  of  justice.  The  law, 
like  everything  in  the  moral  world,  is  a  pure  creation 
of  man  "in  which  nature  has  not  had  the  smallest  part." 

Merkel,  in  apt  terms,  pointed  out  Ihering's  error  on 
this  point,  in  his  philosophical  introduction  to  the  science 
of  law  in  Holtzendorff's  "Enzyklopadie."  An  improved 
utilitarianism  such  as  he  finds  in  Ihering,  John  Stuart 


TANON  461 

Mill,  Leslie  Stephen,  and  others,  does  not  grant  the 
value  to  man  which  belongs  to  him;  and  denies  to  him 
any  part  in  the  origin  of  the  moral  sentiments  which 
are  found  in  him  in  all  stages  of  his  development.  We 
have  within  us  instincts  and  inclinations  which  find  their 
root  in  the  nature  of  man  and  the  peculiar  organization 
of  the  individual.  The  mind  of  a  child  is  not  a  blank 
page  upon  which  any  content  may  be  inscribed,  and  to 
which  nothing  is  added.  Man  is  a  product  of  society 
only  in  the  sense  that  an  oak  is  the  product  of  the  soil 
where  it  takes  root,  and  which,  coming  from  an  oak,  is 
only  able  to  grow  into  an  oak.  There  are  ethical  forces 
which  are  coexistent  with  egoistic  inclinations,  in  human 
nature;  and  both  develop  in  varying  degrees  under  the 
influence  of  social  conditions.  Goodness  of  heart  is 
not  a  consequence  of  social  influence  in  any  different 
sense  than  hardness  of  heart.  The  notion  that  man 
comes  into  the  world  an  absolute  egoist,  and  that  society 
causes  to  spring  up,  as  by  enchantment,  from  his  egoism, 
all  the  moral  forces  of  which  he  has  need  to  attain  his 
social  ends,  is  as  arbitrary  as  that  which  makes  of  the 
individual,  matching  in  the  ranks  of  society,  an  autom- 
aton susceptible  of  being  changed  in  any  degree  what- 
soever at  the  will  of  social  interests. 

To  show  the  untenable  character  of  such  beliefs,  it 
suffices  to  consider  maternal  love,  which  on  one  hand  is 
an  essential  element  of  ethical  humanity,  and  which 
there  discovers  itself  as  one  of  the  forces  of  nature ;  and 
which,  on  the  other  hand,  equally  shows  that  it  is  in 
a  high  degree  a  power  in  the  animal  kingdom.  The 
instincts  corresponding  to  our  moral  feelings  are,  in 
general,  represented  in  various  ways  in  the  animal  world, 
where,  nevertheless,  they  cannot  be  regarded  as  an  arti- 
ficial product  of  education,  or  explained  finally  by  the 
experience  of  the  individual  with  reference  to  his  well- 
being.     Now,  it  is  impossible  to  accept  without  proof 


462  APPENDIX   II 

the  assertion  of  a  dogmatism  which  closes  its  eyes  to 
the  facts,  that  the  organization  of  human  nature  in  this 
regard  is  less  favorable  than  that  of  animals,  and  that 
what  in  the  one  arises  by  natural  inclination  develops 
in  the  other  only  artificially.  Man  is  sociable  by  nature ; 
he  is  not  such  solely  by  virtue  of  social  institutions.  His 
experiences  rest,  from  the  beginning  of  life,  at  once  upon 
egoistic  instincts,  and  upon  different  forces  which  con- 
tribute to  the  formation  of  a  definite,  ethical  ideal,  and 
which  are  not  solely  the  echo  of  a  social  imperative. 

In  the  third  edition,  recently  pubished,  of  the  same 
"Enzyklopadie,"  the  new  editor,  Kohler,  estimates 
Ihering's  concepts  on  this  position,  in  the  same  way. 
They  are,  says  he,  contradicted  by  the  elementary  facts 
of  history.  We  find  altruistic  sentiments  in  man,  no 
matter  how  far  we  go  back  into  the  past.  The  love  of 
children  and  hospitahty  are  more  ancient  than  the 
institution  of  property.  The  author  likewise  afiirms 
that  social  instincts,  doubtless  more  elementary,  have 
nevertheless  a  large  part  in  the  origin  of  societies,  and 
that  it  is  only  later  that  the  egoism  of  the  individual 
takes  on  its  full  extension.  Ihering's  interpretation 
of  the  historical  facts  regarding  moral  institutions  is  a 
perversion  of  the  truth  .^ 

Ribot,  in  his  very  acute  work,  "Psychologie  des 
Sentiments,"  in  like  manner  rejects  the  theory  which 
makes  altruism  a  simple  product  of  a  transformed  ego- 
ism. He  shows  that  the  alta-uistic  instinct  is  itself 
natural  and  primitive;  that  it  is  the  same  of  moral 
feeling  which  is  derived  from  it;    that  this  sentiment 

^  R.  von  Holizendorff,  "Enzyklopadie  der  Rechtswissenschaft"; 
Merkel,  5th  ed.,  p.  87;  and  Kohler,  6th  ed.,  1902,  p.  13.  See,  on 
utilitarian  morals,  Guyau,  "La  Moral  Anglaise  Contemporaine";  and 
Fouillee,  "L'  Idee  Moderne  du  Droit";  also  the  important  work  of 
Wundt,  "Ethics,"  3d  ed.,  1903,  vol.  I,  p.  484,  and  vol.  II,  p.  9  seq. 


TANON  463 

does  not  in  its  origin  spring  from  an  idea,  from  a  judg- 
ment; that  basically  it  belongs  not  to  the  intellectual 
but  the  motor  order,  movement  or  arrest  of  movement, 
instinctive  tendency  to  act  or  not  to  act.  It  is,  in  this 
sense,  innate;  and,  in  a  word,  is  not  fashioned  according 
to  an  assumed,  invariable  archetype,  illuminating  every- 
thing and  always  from  which  the  moral  ideas,  them- 
selves innate  and  completely  formed,  arise;  but  is  of  the 
same  nature  as  hunger  and  thirst  and  other  fundamental 
feelings.  M.  Ribot,  like  Merkel,  gives  as  the  strongest 
proof  of  the  innateness  of  altruistic  feelings,  the  affec- 
tion, the  attachment  which  is  found  also  in  the  animal 
world,  and  which  cannot  be  attributed  to  calculation 
and  interested  prevision,  and  which  appears  to  establish 
the  original  character  of  these  forces  without  question." 

Ihering,  again,  at  another  point  of  view  pushes  his 
theory  to  extreme  consequences  in  his  perversion  of 
absolute  finality,  which,  for  him,  shows  in  all  the  periods 
of  social  life,  even  the  most  primitive,  a  conscious  process 
in  morals  and  law.  He  is  in  disagreement  here  with 
adversaries,  also,  of  the  Historical  School,  who  gener- 
ally recognize  the  unconscious  growth  of  law  in  its  earliest 
customary  period.  The  same  is  true  with  reference  to  the 
philosophers  most  occupied  with  the  methods  of  positive 
science. 

M.  Ribot,  whose  work  we  have  cited,  remarks  that  it 
is  necessary  to  distinguish  two  distinct  periods  in  moral 
development.  The  first  is  instinctive,  spontaneous,  and 
unconscious;  it  is  determined  by  the  conditions  of 
existence  of  the  group  expressed  by  customs,  and  a 
diversity  of  beliefs  and  acts,  moral,  immoral,  amorous, 
trifling.     The  second  period  is  conscious  and  reflective 

*  Ribot,  "La  Psychologic  des  Sentiments,"  pp.  234,  286,  Paris, 
(F.  Mean.) 


464  APPENDIX    II 

in  the  multiple  aspects  as  well  as  the  superior  forms 
of  social  life,  and  expresses  itself  in  institutions,  written 
laws,  civil  and  religious  codes,  and  chiefly  in  the  abstract 
speculations  of  moralists  and  philosophers.  The  learned 
builders  of  moral  systems  have  usually  disdained  the 
first  period;    but  this  is  a  mistake,  because  it  is  the 


source 


Conscious  finality,  whatever  may  be  its  proper  scope, 
and  although  its  importance  increases  progressively 
with  the  periods  of  advancing  civilization,  is  not  suffi- 
cient to  give  a  complete  explanation  of  social  life,  and 
of  all  the  rules  of  morals  and  law.  This  criticism  of 
Ihering  on  two  points,  of  which  the  first  is  of  great 
importance  for  morals,  but  of  much  less  interest  for  the 
law,  ought  not  to  obstruct  our  appreciation  of  all  the 
value  of  this  work  in  which  this  great  jurist  points  out, 
better  than  had  ever  before  been  done,  the  true  objec- 
tive purpose  of  the  law.  Kohler,  in  this  connection, 
does  not  render  to  Ihering  the  justice  which  is  due.  He 
does  not  properly  limit  his  criticism  to  his  theory  of  moral 
sentiments.  He  estimates  with  great  severity,  and,  in 
our  view,  with  much  injustice,  this  whole  effort,  which 
Ihering  valued  well  above  his  "Esprit  du  Droit  Romain," 
and  which  constituted  in  Ihering's  opinion  the  ultimate 
expression  of  his  scientific  elaboration  of  the  law.^ 
Kohler  does  not  recognize  any  other  philosophy  of  law 

'  Eod.  op.  p.  284. 

*  Cf.  in  the  preface  of  the  translation  of  M.  de  Meulenaere,  ex- 
tracts from  letters  written  by  Ihering  April  3,  1883,  "This  work, 
and  not  the  'Esprit  du  Droit  Romain,'  sums  up  the  results  of  my  entire 
scientific  labor.  This  will  not  be  understood  until  this  work  is  com- 
pleted; [the  preface  to  the  first  edition  of  the  second  volume  is 
dated,  Aug.  22,  1883].  In  my  judgment  the' Esprit  du  Droit  Romain' 
is  only  a  preparatory  work;  but  it  was  necessary  to  write  the  'Esprit' 
to  be  able  to  engage  in  this  study,  the  elaboration  of  which  achieves 
my  highest  scientific  aspiration." 


TANON  465 

than  that  of  Hegel,  and  condemns  any  system  unpro- 
vided with  a  metaph^^sical  basis.^  We  cannot  under- 
take here  a  discussion  of  the  philosophy  of  Hegel,  which 
is  on  the  whole  justly  abandoned,  even  in  Germany,  by 
contemporary  thought."*  Kohler's  reproach  of  Ihering, 
that  he  has  not  fortified  his  system  with  metaphysics, 
proceeds  upon  a  view  which  we  are  not  able  to  share,  as 
to  the  value  of  a  transcendental  principle  of  law  in  the 
domain  of  science.  No  doubt  it  is  allowable  to  moralists 
and  philosopher-jurists  who  desire  to  introduce  a  certain 
unity  into  their  concepts  of  the  world  and  of  life,  to 
connect  their  theories  with  some  elevated  metaphysical 
principle.  But,  at  that  moment,  they  leave  the  high- 
way of  observation  and  science ;  and  they  are  not  able 
to  find  in  such  a  principle  any  tangible  help  in  working 
out  the  concrete  rules  of  morals  and  law. 

Sec.  2.  Finalistic  and  utilitarian  theories  and  their 
opposition.  If,  besides  following  Ihering  on  this  point, 
the  current  utilitarian  theories  exaggerate  the  role  of 
conscious  finality  in  primitive  periods  of  the  develop- 
ment of  morals  and  law,  a  new  school,  by  a  contrary 
theory,  is  straining  itself  in  these  latter  years  to  banish 
this  notion  entirely  from  these  two  domains.  The  utili- 
tarian and  teleological  systems  have  not  been  combated 
long  except  in  the  name  of  idealism.  Their  supporters 
were  regarded  as  the  representatives  of  science  against 

®  Kohler,  loc.  cit. :  "When  one  descends  from  the  elevation  of  the 
philosophy  of  Hegel  to  the  system  of  a  Krause,  an  Ahrens,  or  a 
Roder,  it  is  like  passing  from  a  magnificent  palace  to  the  small 
cottage  of  a  commoner;  and  when  one  arrives  at  Ihering,  the  im- 
pression is  that  of  descending  to  a  room  filled  with  poor  people. 
Ihering's  whole  work  is  built  upon  the  sand,  it  has  no  philosophical 
foundation  and  its  metaphysics  is  much  like  that  of  a  Frisian  shep- 
herd. The  picture  is  not  overdrawn;  it  is  diminished  rather,  and 
outlined." 

1"  [This  statement  will  require  re-writing  in  the  next  edition  of  this 
work.  —  Tr.] 


466  APPENDIX    II 

philosophical  speculation,  of  the  facts  given  by  experi- 
ence against  abstract  reason. 

Latterly  a  new  school  has  risen  in  opposition,  under 
the  name  of  science  itself.  The  desire  to  exclude  finality 
from  sociology,  morals,  and  law  appears  under  a  scien- 
tific impulse.  But  the  discussions  which  have  been 
raised  on  this  subject  exhibit  a  certain  amount  of  con- 
fusion. After  having  with  reason  rejected  finality  in 
the  natural  sciences,  and  justly  criticised  the  abuse  which 
has  been  made  of  teleological  explanations  of  natural 
phenomena,  nevertheless  finality  should  not  be  excluded 
from  its  proper  sphere,  where  it  manifests  itself  by 
irresistible  evidence  —  that  of  voluntary  and  conscious 
human  acts.  Yet  this  is  what  some  writers,  and  even 
including  sociologists  and  moralists,  appear  to  do.  These 
writers  desire  to  proscribe  finality  in  all  departments  of 
science.  They  attack  all  the  finalist  concepts  with  such 
\'igor  that  one  would  say  that  they  desire  to  exclude  even 
voluntary  and  conscious  human  action  as  indifferent, 
idle,  and  lacking  all  value. 

There  is  here  an  equivocation  which  it  is  necessary  to 
dissipate.  It  arises  from  a  distinction,  correct  in  the 
main,  which  these  authors  make  between  science  and 
art,  but  which  must  not  be  unduly  extended  when 
treating  the  moral  and  political  sciences.  Science,  it  is 
said,  is  knowledge  of  what  is;  art  is  knowledge  of  what 
ought  to  be.  The  science  of  morals  investigates  the 
reality  of  morals  and  customs  in  the  present  and  in  the 
past.  This  reality  ought  itself  to  be  studied  in  construct- 
ing abstractions  of  any  finality.  This  entirely  scientific 
inquiry  has  for  its  object  the  discovery  of  the  laws  which 
govern  the  social  world.  It  will  be  a  long  and  difficult 
study.  It  will  give,  nevertheless,  when  it  shall  be  fully 
developed,  some  laws  which  will  permit  the  anticipation 
of  social  phenomena:  it  will  in  a  certain  measure  pro- 
vide man  with   the  most  suitable  means  of  securely 


TANON  467 

realizing  his  ends;  and,  therefore,  will  substitute  for  an 
empirical  method  a  rational  art  based  on  the  simple 
facts  of  experience.  But  these  results,  however  imperfect 
they  may  be,  will  not  be  attained  except  in  a  very 
remote  future  which  we  are  not  yet  able  to  foretell. ^^ 

This  distinction  is  applied  to  the  law.  The  science  of 
law  is  knowledge  of  what  is,  or  has  been,  in  other  words 
the  whole  of  juridical  reality,  made  up  of  customary 
law  and  legislation,  of  the  present  and  in  the  past. 
Legislation,  which  is  improperly  called  a  science,  is  only 
an  art.  Only  the  discovery  of  the  laws  of  the  social 
world  will  provide  the  means  to  pursue  and  attain  its 
true  objects  and  will  give  it  the  fixed  bases  which  it  now 
lacks. 

These  writers,  however,  do  not  explain  what  should  be 
the  method  of  proceeding  in  the  discovery  of  these  sup- 
posed laws,  so  necessary  to  know,  and  yet  so  remote  and 
difficult  of  estctbHshment.  They  appear  to  be  almost 
wholly  indifferent  to  the  matter.  Life  will  develop  its 
course  empirically,  and  we  may  say  as  it  is  able.  The 
simple  statement  of  this  thesis  discloses  its  extravagance. 
This  assimilation  between  supposed  social  laws  which 
are  yet  to  be  discovered,  for  the  greater  part,  and  of  the 
rest  of  which  none  is  admitted  without  dispute,  and 
natural  laws,  is  evidence  of  an   exaggerated   scientific 

^^  See,  especially , Levy-Brtihl,  "La  Morale  et  la  Science  des  Moeurs," 
(F.  Alcan,  1903).  In  this  able  essay  which  contains  a  learned  and 
profound  analysis  of  empirical  moral  reality,  the  author  maintains 
that  there  can  be  no  science  of  morals,  but  only  a  tcience  of  cus- 
toms, and  a  rational  moral  art,  which  does  not  yet  exist,  and  which 
this  science  alone  will  be  able  to  discover,  independently  of  all  social 
purposes  and  ideas.  This  proposition  has  already,  often  and  suffi- 
ciently, been  refuted.  See  Fouillee,  "Elements  Sociologiques  de  la 
Morale"  (F.  Alcan,  190.3),  p.  254  seq.;  Ch.  Belot,  "Etudes  de  Morale 
Positive,"  p.  112  seq.  (F.  Alcan);  and  quite  recently, £.  Faguet,  "La 
Demission  de  la  Morale,"  Paris,  1910,  p.  115  seq. 


468  APPENDIX   II 

optimism  which  misconceives  the  nature  of  things,  and 
confuses  two  distinct  worlds  —  the  sciences  properly 
so  called,  and  the  political  and  moral  sciences.  We 
find  here  a  legacy  of  the  philosophy  of  Comte,  which 
regarded  knowledge  of  these  laws  as  highly  advanced 
upon  the  mere  appearance  of  his  philosophical  system, 
and  which  believed  that  it  saw  in  this  system  a  valuable 
instrument  ready  to  forecast  the  course  of  social  phe- 
nomena. We  know  that  this  hope  of  Comte  has  been 
shattered. 

Whatever  social  laws  we  may  be  able  to  discover 
will  always  be  marked  by  a  character  of  contingency 
much  greater  than  in  the  case  of  other  scientific  laws, 
such  as  the  laws  of  the  natural  sciences,  regardless  of 
the  degree  of  our  learning.  This  results  from  the  infinite 
complexity  of  the  elements  which  the  investigator  must 
take  into  account,  and  which  he  is  only  able  to  encom- 
pass in  their  entirety,  under  great  difficulty,  with  any 
degree  of  assurance.  It  is  not  without  a  certain  abuse  of 
language,  that  learned  sociologists  speak  so  glibly  of 
true  sociological  laws,  with  such  imperfect  means 
of  their  establishment;  when  in  the  sciences  properly 
so  called,  we  find  that  experimental  laws  better  sustained 
carry  certain  hypothetical  qualifications.  But  even 
though  knowledge  of  what  is  shall  be  established  in  soci- 
ology, morals,  and  law,  which  is  the  most  important 
object  of  scientific  investigation,  still  it  will  be  improper 
to  maintain  in  these  departments  of  learning,  a  separa- 
tion so  absolute  between  science  and  art. 

A  large  part  of  social  reality  is  composed  of  voluntary 
and  conscious  human  acts,  and  it  is  not  possible  even  in 
the  bare  study  of  this  reality  to  exclude  all  consideration 
of  finahty.  It  is,  no  doubt,  dangerous  and  erroneous  to 
attribute  to  institutions  the  purposes  which  we  con- 
ceive for  them  and  the  objects  which  they  serve  today, 


TANON  469 

in  discovering  the  causes  of  their  original  establishment. 
But  it  is  not  less  useful  and  indispensable  for  our  com- 
plete understanding  of  this  reality  to  know,  in  addition 
to  the  actual  objects  of  institutions,  the  motives  which 
gave  them  birth. 

To  diminish  the  practical  value  of  all  finalistic  con- 
cepts, it  is  objected  that  the  object  sought  in  individual 
or  social  acts  is  frequently  imperfect,  and  that  the  choice 
and  selection  of  the  means  of  action  are  much  more 
important  for  conduct  than  the  end  to  be  attained. 
Experience  incontestably  proves  that  an  end  pursued  is 
often  defective,  and  that  acts  carried  out  for  a  definite 
purpose  and  with  a  view  of  a  certain  effect,  may  produce 
an  entirely  different,  and  even  contrary,  result.  But 
though,  by  force  of  the  complexity  of  our  acts,  and  the 
reactions  which  they  exercise  the  one  upon  the  other, 
and  also  because  of  the  infirmity  of  human  foresight,  our 
acts  never  attain  the  purposes  at  which  they  aim,  it 
does  not  follow  that  better  results  would  be  accomplished 
by  purposeless  action.  Otherwise,  the  most  incoherent 
life  would  be  the  most  reasonable.  The  best  means  for 
obtaining  an  individual  or  social  existence  with  the 
greatest  possible  coherence,  is  to  have  a  clear  view  of  its 
ends.  Change  from  an  unconscious  to  a  conscious  stage 
in  society  is  one  of  the  certain  characteristics  of  evolu- 
tion and  progress. 

Another  fact  well  recognized  is  opposed  against 
finalism.  It  is  that  of  institutions  established  for  a 
certain  purpose,  serving  afterwards  other  objects  which 
are  substituted  for  the  first.  This  is  what  is  called  the 
heterogeneity  or  metamorphosis  of  ends.  This  substi- 
tution of  objects  proves  nothing  against  finalism.  It 
simply  demonstrates  the  extreme  plasticity  of  human 
institutions.  It  shows  that  man  is  always  strongly 
influenced  by  tradition,  and  that  he  is  thus  brought  to 


470  APPENDIX    II 

adapt  his  old  institutions  to  new  ends  in  place  of  invent- 
ing others.  This  phenomenon  explains  and  justifies 
itself  all  the  more  by  this,  that  such  an  adaptation  which, 
perhaps,  may  not  be  more  imperfect  than  a  newly  created 
institution,  has  nevertheless  the  advantage  of  disturbing 
in  the  least  possible  manner  continuity  with  the  past, 
and  renders  unnecessary  a  general  readjustment  of 
settled  conditions,  which  the  invention  of  a  new  institu- 
tion requires.  It  has  been  observed  that  frequently  the 
best  method  of  introducing  and  perpetuating  a  reform  is 
to  adapt  it,  as  far  as  possible,  to  the  conditions  already 
established,  by  allowing  to  remain  all  that  may  be  pre- 
served of  the  older  situation.  Old  institutions,  there- 
fore, may  be  maintained  alongside  of  new  purposes, 
but  on  condition  that  they  adapt  themselves  in  a  more  or 
less  complete  fashion  to  these  objects.  If  this  adapta- 
tion is  impossible,  or  if  its  ends  have  failed,  then  the 
institution  falls;  it  becomes  a  mere  survival,  and  finally 
disappears. 

Another  objection  from  a  more  general  and  funda- 
mental standpoint  has  been  leveled  against  finalism, 
especially  in  recent  years.  It  is  asserted,  that  in  reality, 
ends  do  not  determine  even  our  conscious  and  voluntary 
acts;  that  the  end  projected  is  only  a  sort  of  epi phe- 
nomenon which  is  not  able  to  exert  the  slightest  influence 
on  the  natural  course  of  things. ^^  ]\Jq  doubt  it  is  true 
that  the  immediate  objects  of  our  acts  are  not  their 
primary  causes,  and  that  these  acts  are  determined  by 
a  complex  series  of  phenomena  of  which  a  large  part 
escapes  our  observation,  and  the  succession  of  which  is 
lost  to  our  view.  But,  even  though  these  objects, 
proceeding    through    an    infinite    series  of    antecedent 

"SeeLe  Dantec  ("Le  Conflit,"  Paris,  1901;  and  "Les  Influences 
Ancestrales,"  Paris,  1905)  who  drives  this  theory  to  extreme  conse- 
quences. 


TANON  471 

phenomena,  generators  of  a  given  act,  lose  themselves  in 
an  hypothetical,  universal,  mechanical  process  of  which 
our  understanding  doubtless  only  attains  an  imperfect 
notion,  their  consideration  is  not  in  less  degree  of  capital 
importance  for  practical  matters,  since  they  are  incon- 
testably  the  most  proximate  conditions  of  our  acts.  To 
say  that  these  pretended  epiphenomena,  because  they 
accompany  necessarily  conscious  and  voluntary  acts,  do 
not  have  any  influence  upon  the  course  of  things,  and 
that  everything  would  happen  in  the  same  manner  as 
if  they  did  not  exist,  appears  to  us  as  nonsense,  even  from 
the  standpoint  of  universal  determinism. 

Finality  cannot  be  ignored  in  the  study  of  social 
phenomena.  These  phenomena  may  always  be  studied 
under  the  two  different  aspects  of  finality  and  causality. 
These  two  principles  are  not  mutually  exclusive  —  one 
presupposes  the  other.  Application  of  finality  is  not 
possible  except  on  condition  of  the  validity  and  simul- 
taneous application  of  causality. ^^  Yet  Ihering's  con- 
fusion must  be  avoided,  of  classifying  physical  cause 
and  purpose,  which  he  calls  the  psychological  cause,  as 
of  the  same  order.  Representation  of  purpose  does  not 
necessitate  action  in  the  same  way  that  a  natural  cause 
requires  a  certain  effect.  The  act  may  not  be  performed ; 
it  may  perhaps  be  stayed.  If  executed,  the  act  may 
not  accomplish  the  object  projected,  or  it  may  result 
in  a  different  end.  Finally,  many  different  acts  may 
be  imagined  which  are  effective  to  realize  the  same  end. 
If  these  contingencies  make  the  teleological  method  less 
secure  than  the  causal  approach,  yet  they  do  not  deprive 
it  of  its  utility.  The  nature  of  the  phenomena  to  be 
studied  and  the  sciences  or  arts  under  investigation  will 
determine  the  employment  of  the  one  or  the  other  of 
these  methods,  according  as  their  application  will  be 
"  Wundt,  "Logik";   "der  Zweck,"  p.  642  seq. 


472  APPENDIX    II 

more  or  less  difficult,  or  more  or  less  effective,  for  solving 
the  practical  problems  of  social  life. 

Finality  manifests  itself  especially  and  with  irresistible 
force  in  the  law.  There  is  no  law,  important  or  unim- 
portant, whether  it  concerns  the  fundamental  organiza- 
tion of  the  State,  the  interests  of  the  general  community, 
or  dispositions  supporting  the  most  trifling  advantages, 
which  has  not  been  inspired  by  a  purpose,  or  which  is 
not  justified  by  an  end.  Any  judgment  which  may  be 
supported  regarding  it,  its  expediency,  its  validity,  or 
its  character  as  harmful  or  inopportune,  is,  above  all, 
a  teleological  judgment.  That  which  is  discussed  in 
the  deliberations  preceding  its  promulgation,  is  the 
effect  which  it  will  produce. 

It  is  not  otherwise  in  the  political  sphere.  All  parties 
invoke  public  welfare  as  the  most  general  object  of  their 
activity.  This,  at  any  rate,  is  the  mark  with  which 
they  cover  and  conceal  even  their  most  self-interested 
intentions.  All  political  regimes,  whether  monarchical, 
oligarchical,  or  democratic,  and  all  systems  of  govern- 
ment, may  invoke  other  principles,  but  they  lay  stress 
in  the  highest  degree,  for  justification  of  their  acts,  upon 
their  objects  and  the  benefits  which  they  diffuse  among 
individuals  and  the  community.  PoHtical  eloquence 
itself  is  more  and  more  throwing  over  abstract  principles, 
fine  language,  and  verbal  idols.  It  still  employs  these 
devices,  no  doubt,  like  a  military  standard,  to  lead  the 
multitude  and  to  arouse  popular  passion.  In  reality, 
however,  it  is  ends  and  concrete  objects  which  are  the 
material  of  discussion  and  of  which  account  is  taken  for 
the  purpose  of  obtaining  enlightened  judgment  upon 
all  those  things  which  should  be  the  subject  of  thoughtful 
deliberation. 

Sec.  3.  Latent  Finality.  The  several  systems  which 
appear  to  base  law  upon  religious,   mataphysical,  or 


TANON  473 

ideological  and  a  priori  foundations  do  not,  however 
exclude  all  finality.  Finality  is  not  entirely  inconsistent 
with  theological  principles.  As  it  is  impossible  to  con- 
nect all  rules  of  law  with  commandments  claiming  an 
origin  in  divine  authority,  consideration  may  be  taken, 
without  contradiction  of  the  theories  of  these  systems, 
of  concrete  ends  of  life,  for  the  purpose  of  establishing 
the  varied  and  complex  residuum  of  juridical  pre- 
scriptions. Purpose  here  is  not  simply  secondary;  it  is 
necessary  always  that  these  prescriptions  should  be  in 
accord  with  revealed  truth,  or  what  is  regarded  as  such. 
In  a  word,  the  law,  in  this  regard,  is  dependent  on  theology. 
This  dependence  may  be  much  or  little,  according  to 
the  theological  views  of  the  writer  in  question ;  it  exists 
none  the  less  of  necessity,  and  it  is  precisely  on  this  point 
that  the  essential  character  is  seen  which  distinguishes 
these  systems  from  all  others. 

Finality  is  capable  of  harmonizing,  and  quite  easily 
too,  with  the  social  contract  theories.  The  theories  of 
Hobbes  and  Rousseau  show  this  in  a  somewhat  inexact 
and  incomplete  fashion.  It  is  frequently  said  that  in 
the  system  of  Hobbes,  the  just  and  the  unjust  are  arbi- 
trarily determined  by  the  absolute  sovereign.  This 
statement  is  true  only  with  reference  to  the  relation  of 
the  sovereign  and  his  subjects.  But  in  the  view  of 
Hobbes,  the  just  in  itself,  as  it  is  understood  by  the 
philosopher,  and  even  by  the  sovereign  lawgiver  himself, 
is  that  which  conforms  to  the  general  good,  and  injustice 
is  the  contrary.  The  exposition  of  the  general  will  of 
the  people  ("volonte  generale")  by  Rousseau,  gives  rise 
to  similar  confusion.  Finality  is  not  excluded;  it  is 
simply  presented  in  an  indirect  form.  General  will,  in 
this  theory,  has  the  same  significance  as  that  which 
Hobbes  attributes  to  the  absolute  sovereign:  his  com- 
mands are   infallible   and   must   be   obeyed.     But   the 


474  APPENDIX    II 

general  will  is  always  good  and  always  right,  because 
it  is  not  able  to  desire  other  than  the  common  welfare. 
This  necessary  conformity  of  general  will  with  what 
Rousseau  calls  "common  welfare"  best  explains  and 
reconciles  the  obscure  passage,  standing  in  apparent 
contradiction,  in  which  he  defines  general  will. 

The  purely  rationalistic  systems,  which  appear  to 
exclude  all  finaHty  with  the  greatest  rigor,  are  not  able 
to  any  extent  to  render  account  either  of  the  content  of 
law  or  of  its  true  origin.  When,  by  rare  chance,  the 
writers  of  these  systems  lower  their  abstract  speculations 
to  the  level  of  practical  concerns,  they  are  not  able  to 
explain  even  the  most  elementary  juridical  rules  except 
by  unfounded  hypotheses,  or  forced  deductions,  entirely 
arbitrary,  and  under  a  logical  appearance;  and  when 
they  give  good  explanations,  it  is  by  a  process  of  uncon- 
scious teleological  reasoning,  more  or  less  artfully  dis- 
guised. The  proof  of  this  is  often  found  in  Kant  in  the 
application  of  his  standpoint  to  the  simplest  juridical 
rules;  as,  for  example,  the  rule  against  breach  of  a  bail- 
ment relation.  This  subject  has  had  renewed  investi- 
gation and  been  largely  developed  in  its  connection 
with  morals  by  Sidgwick  ("Method  of  Ethics"),  in  his 
critical  inquiry  into  the  different  forms  of  intuitional 
morals. 

Latent  finality,  either  more  or  less  openly  displayed, 
is  implicated  in  all  the  theories  which  propose  any  other 
basis  whatever  for  the  juridical  order;  and  they  are  not 
able,  in  their  practical  applications,  to  escape  the  ob- 
jective consideration  of  purpose.  Admissions  of  this 
finality  are  frequently  found  among  those  authors  them- 
selves who  have  recently  combated  most  vigorously 
in  morals  all  finalist  concepts  in  the  name  of  science. 
It  is  thus,  that  Levy-Briihl  speaks  ("Science  des  Moeurs," 
p.  17)  concerning  the  reasonable  application  of  existing 


TANON  475 

things  for  the  essential  welfare  of  all;  of  turning  social  con- 
ditions to  the  best  account  for  the  best  and  happiest  life 
(p.  165) ;  and  yet  more  decisively  in  an  article  in  the 
Revile  Philosophique,  of  the  exception  made  "of  ends 
which  are  universal  and  instinctive,  so  much  so,  that 
without  them,  there  could  be  no  question  either  of 
moral  reality,  of  a  science  of  this  reaUty,  or  of  applications 
of  this  science."  He  speaks,  lastly,  of  the  object  con- 
ceived for  reconciling  "the  coexistence  of  individuals  and 
societies,  in  order  that  each  may  live,  and  live  in  the 
largest  sense."  ^*  But  everything  accords  with  these 
universal  ends,  so  indispensable,  it  is  said,  to  the  science 
of  morals,  which  necessarily  decomposes  them  into  a 
series  of  particular  ends  consistent  with  the  same 
object. 

The  historical  realism  of  Marx  and  his  school,  which 
is  today  energetically  battered  in  the  breach,  is  itself 
completely  colored  with  finality.  It  would  make  a  new 
society,  of  which  it  predicts  the  coming,  from  the  neces- 
sary evolution  of  the  economic  order,  and  due  alone  to 
the  irresistible  operation  of  natural  forces.  It  has  long 
since  been  shown  that  this  theory  does  not,  in  reality, 
exclude  the  idea  of  finality;  and  that  it  is  thoroughly 
penetrated  by  teleological  notions  in  its  postulate  of  a 
new  society,  and  yet  more,  in  the  measures  pointed  out 
to  hasten  its  approach.  Appeal  to  a  conflict  of  classes 
does  not  have  any  meaning,  if  human  purposes  have 
no  influence  upon  evolution.  Stammler,  in  a  notable 
work  dealing  with  economics  and  law,  was  one  of  the 
first  to  perceive  this  fact.*^  This  author  has  clearly 
shown,  as  Croce  has  called  to  mind,  how  finality  is  always 

"  Revue  Philosophique,  July,  1906,  p.  14. 

^^  R.  Stammler,  "Wirtschaft  und  Recht  nach  dcr  Materialistischen 
Geschichtsauffassung."     Leipzig,   1896. 


476  APPENDIX   II 

assumed  by  historical  materialism  in  all  its  affirmations 
of  a  practical  nature.'^ 

Stammler  does  not  limit  his  investigation,  however, 
to  discovery  of  the  relations  of  political  economy  and  law. 
He  has  sketched  in  this  first  study,  and  elaborated  in  a 
second  work  dealing  with  the  theory  of  justice,  a  system 
of  philosophy  of  law  which,  emanating  from  a  jurist  so 
esteemed  and  so  learned  in  all  the  departments  of  social 
science,  cannot  be  here  passed  in  silence." 

While  Stammler,  in  his  much  more  profound  study 
of  finality,  in  agreement  with  Ihering,  recognizes  that 
juridical  regulation  of  social  life  necessarily  implies  the 
idea  of  purposes  to  be  realized  and  that  the  law  is  always 
the  means  to  an  end,  yet  he  develops  a  system  which 
differs  entirely  from  that  of  Ihering.  He  states  from 
the  first  the  general  principle  of  finality  in  the  law. 
He  asserts  that  all  juridical  rules  tend  by  their  very 
nature  to  stimulate  a  certain  conduct  on  the  part  of 
those  subject  to  them;  that  the  idea  of  purpose  is  neces- 
sarily given  in  such  rules;  and  that  with  the  law,  entrance 
is  made  into  the  domain  of  teleology,  its  validity  being 
determined  by  the  ends  which  the  law  seeks  to  realize. 
He  puts  aside,  however,  concrete  purpose  in  law,  con- 
ditioned historically  or  variant  according  to  time  and 
place,  and  seeks  a  rule  of  validity  for  law,  independent 
of  all  contingency.  To  establish  this  rule,  he  invokes 
the  notion  of  a  community  of  men  of  good  will,  the 
members  of  which  shall  be  free  from  all  subjective  feel- 
ings and  all  interested  motives,  and  in  which  each  may 
pursue  all  the  legitimate  ends  of  all  others.     It  is  in 

^^Benedetto  Croce,  "Le  Materialisme  Historique,"  translated  by  A. 
Bonnet,  Paris,  1900. 

"  "Die  Lehre  von  dem  richtigen  Rechte,"  Berlin,  1902.  [See, 
also,  Stammler's  latest  effort,  "Theorie  der  Rechtswissenschaft, 
Halle,  1911.  —  Translator] 


TANON  477 

conformity  of  the  creative  will  of  the  law  with  that  of 
this  ideal  community,  that  he  discovers  the  formal  law 
of  all  juridical  purpose,  and  the  governing  standard  by 
which  its  validity  is  determined. 

It  is  not  necessary  to  demonstrate  that  this  community 
of  men  of  good  will  is  entirely  imaginary ;  that  the  notion 
of  an  impersonal  purpose,  stripped  of  all  subjective  and 
concrete  desire,  is  a  contradiction  in  terms;  and  that  an 
object  cannot  be  established  in  pure  abstraction,  nor 
separated  from  a  subject,  be  it  what  it  may.  If  the 
thought  be  extended  to  include  a  subject,  that  subject 
cannot  be  a  community,  whether  large  or  small,  a  party, 
a  nation,  or  a  State;  and,  finally,  this  imaginary  com- 
munity is  as  much  inconceivable  from  a  logical  stand- 
point, as  unreal  in  experience  (as  Stammler  himself  has 
admitted  ).^^ 

Stammler,  in  his  second  work,  derives,  and  exerts  him- 
self to  apply,  four  leading  rules  from  the  principle  which 
he  had  stated  as  the  object  of  his  earHer  book.  But  it 
has  been  justly  observed  that  the  results  at  which  he 
thus  arrives  are  hardly  appreciable;  and  that  they  are 
besides,  an  application  in  appearance  only  of  this  method 
and  could  be  attained  more  directly  and  more  securely 
by  other  lines  of  reasoning.^^  Stammler's  principle  is 
manifestly  inspired  by  Kant's  law  of  good  will;  again, 
so  far  as  it  requires  that  each  one  may  make  his  own 
the  legitimate  ends  of  others,  it  is  the  altruism  of  Comte, 
or  rather  the  egoistic  altruism  of  Spencer.  It  exhibits 
a  tendency  of  thought  and  a  direction  of  motive  very 
desirable  from  the  viewpoint  of  the  legislator ;  but  it  is 
not  a  principle  from  which  the  concrete  rules  of  law  may 
be  deduced.     While  appreciating  at  its  true  value  the 

^*G.  Simmel,  in  "Schmoller's  Jahrbuch,"  1897,  p.  578. 

"  M.  E.  Mayer,  in  "Kritische  Vierteljahrschrift  fiir  Gesetzge- 
bung  und  Rechtswissenschaft,"  1906,  p.  178  seq. 


478  APPENDIX  II 

entire  critical  part  of  Stammler's  earlier  work,  notably 
that  which  deals  with  natural  law,  finality,  and  historical 
materialism,  Simmel  says,  with  some  severity,  that  it 
proves  again  that  in  works  of  this  class  the  instability 
of  the  foundation  does  not  detract  from  the  solidity  of 
the  superstructure.^" 

^"G.  Simmel,  loc.  cit.,  p.  578. 


INDEX 


[The  numbers  refer  to  the  pages.] 


Abortion.  374  ff. 

"Accessio,"  394. 

"Actio  commodati,"  207. 

"Actio  locati,"  85. 

"Actio  mandati,"  213. 

"Actio  pro  socio,"  96  note. 

Acts,  self-regarding  and  non-self- 
regarding,  40  a. 

Aedile.  377  ff. 

yEsop,  160  note. 

Agreement,  verbal,  96  note. 

Arbitrariness,  268  ff. 

"Argentarius,"  112  note. 

Association,  95,  157  ff.,  163  ff.; 
public  a.  223  ff.;  distinguished 
from  partnership,  224  ff. 

Augustus,  340  and  note  67. 


Beccaria,  280. 

Beethoven,  118. 

Benevolence,  insufficient  for  com- 
merce, 76  ff. 

Binding,  218  note  41. 

"Bonhasenjagen,"  116  and  note. 

Brissonius,  215  note  23. 

Bruns,  155  note  41. 

Burden,  359. 

Business,  45;  bilateral  real  b.,  203, 
204;  unilateral  real  b.,  ibid. 
bilateral  promissory  b.,  204,  206 
unilateral  promissory  b.,  ibid. 
effective  unilateral  real  b.,  204  f . 
imaginary  unilateral  real  b.,  204 
205. 


Capital,  127. 
Catalan!,  118. 
Categorical  imperative,  38. 
Causality,  law  of,  1  ff.,  15  ff. 
Cause,  and  purpose,  Ivii  ff.,  1  ff. 
Censor,  in  Rome,  375  ff . 
Church,  32  ff.,  240  ff. 
Cicero,   82   note   6,    125   note   32, 
315  note  59,  317,  376  note. 


Coercion,  73,  176  ff.;  mechanical 
c,  176;  psychological  c,  177, 
180  ff.;  propulsive  c,  177,  194 
ff.;  compulsive  c,  ibid.,  197  ff., 
198  ff.;  political  c,  178;  social 
c,  ibid.;  c.  in  animals,  179  ff. ; 
c.  in  man,  181  ff.;  self-regula- 
tion of  c,  218  ff.;    231. 

Command,  individual,  254  ff. 

Commerce,  28,  74  ff.;  Roman 
system  of  c,  79  ff.;  founded  upon 
egoism,  88  ff. ;  does  not  coincide 
with  exchange,  94  ff.;  two  prin- 
cipal forms  of  c,  92  ff.,  157  ff.. 
170  ff. 

"Commodatum,"  42,  77,  121. 

Compensation,  principle  of,  88  ff.; 
regulated  by  vocation,  115  ff.; 
c.  for  public  service  in  Rome, 
155  ff. 

Competition,  102,  116  ff. 

Compulsion,  physical,  11  ff.;  psy- 
chological, ibid.,  45;  c.  as  a 
lever  of  service  to  the  State, 
145  ff.,    359. 

"Condictio  certi,"  207. 

Consideration,  92,  96  ff. 

Constantine,  86  and  note  11,  322 
note. 

Contract,  29;  gratuitous  c,  42, 
54  flf.;  liberal  and  business  c, 
76  ff.,  92,  207;  c.  for  services.  77; 
onerous  c,  89,  92,  207;  bilateral 
c.  92.  93.  96;  unilateral  c.  92; 
lucrative  c,  ibid. ;  c.  of  e.xchange, 
94,  161;  c.  of  partnership,  95; 
c.  of  lease,  98;  c.  of  service, 
ibid.;  literal  c,  125,  205;  verbal 
c,  ibid.,  211,  213;  c.  of  sale, 
128,  129,  198  ff.;  in  Roman  law, 
202  ff. 

Cornelius,  142. 

Credit,  118  ff.;  money  its  sole 
object,  122;  merchandise  c,  128 
ff.;    money  c,  ibid.;  private  c. 


480 


INDEX 


[The  numbers  refer  to  the  pages.] 


Credit — (continued). 

131  ff.;  mercantile  c,  ibid.; 
real  c,  132;  personal  c,  ibid.; 
consumers'  c,  133;  trade  c, 
ibid.;  emergency  c,  134;  c.  of 
convenience,  ibid. ;  c.  of  specula- 
tion, 135;    dangers  of  c.  135  ff. 

Crime,  360  ff.;  c.  against  indi- 
vidual, 370;  c.  against  the  State, 
370  ff. ;  c.  against  society,  372  ff . 

"Culpa."  94. 

Debt,  360. 

Deposit,  77. 

"Depositum,"  42,  121;    "d.  regu- 

lare"  and  "irregulare,"  122. 
Despotism,  184;    law  in  d.,  263. 
Dickens,  Boz,  227  note. 
Division  of  labor,  113.  291. 
"Dolus,"  29  note,  93  note. 
"Donatio."  42  and  note. 
Donation,  77. 
"Dos,"  216. 

"Dotis  dictio."  216  and  note  27. 
Duel,  374. 
Duty,  feeling  of,  46,    49,    50.    73, 

109  f. 

Edicts,  Praetorian,  256  note. 

Egoism,  24;  e.  in  the  service  of 
altruistic  purposes,  25  ff. ;  all 
commerce  founded  upon  e.. 
88  ff.,  101  ff.;  competition  as 
social  self-adjustment  of  e.,  102; 
e.  arriving  at  law.  186  ff.;  344 
ff.;  .397  ff. 

Ehrenberg,  209  note. 

Elizabeth,  304. 

Engel,  149  note. 

Equality,  in  justice,  276  ff. 

Equivalent.  92,  100  ff.;  e.  is 
realization  of  justice.  101;  real- 
ized by  vocation,  114,   278. 

Exchange,  51  ff.,  77,  92  ff.;  con- 
tract of  e.,  94;  commerce  does 
not  coincide  with  e.,  ibid.  ff. 

Existence,  social  form  of.  59  ff. 

Experience,  influence  of  m  the 
animal,  4  ff. 

Expropriation.  391  ff. 

"Extraordinaria  cognitio."  85. 


Family,  197  ff. 

Festus.  81  note  3. 

Fichte.  38  note,  422  note. 

Force,  179  ff.;  defensive  f..  195; 
offensive  f..ibid.;  State  f..  233  ff. 

Foundations.  3.50  ff.;  testamen- 
tary f.  in  Roman  law.  354  ff. 

Gains,  13  note. 

Gauss.  414. 

Gellius.    138    note,   245  note.  378 

note  97. 
Gift,    42    and    note,    161;     g.    in 

Roman  law,  209,   210. 
Glossators.  86  note  11. 
Grimm.  J..  88. 

Haeckel.  Iviii. 
Hans  Sachs.  118. 
Hartmann,  E.  von,  338  note. 
Hegel.  Iv,  178. 

"Hermeneuticum,"  112  note. 
Henry  \'n.  304. 
"Honor,"  82.  147. 
Honorarium.  98  ff..  141. 
Humboldt.     Alexander    von,    142, 
.399,  400  ff.,  403,  404. 

Imperative,  categorical,  38. 

Individual,  347;  i.  obligation.  355; 
i.  crime,  370;  conditions  of  life 
of  i.,  370;  solidarity  of  interests 
of  society  and  the  i..  415  ff. 

"Interdictum  de  precario."  207. 

Influence,  unintentional  of  one 
upon  the  other.  60  ff . ;  continua- 
tion of  i.  beyond  life.  61  ff. 

Inheritance,  right  of  i.  in  its  rela- 
tion to  the  history  of  culture.  62. 

"Insinuatio,"  209. 

Intercourse,  two  principal  forms 
of,  92  ff. 

Interest,  25  ff. ;  impossibility  of 
action  without  i..  36;  i.  and  pur- 
pose, 46,   98. 

Joint-stock  companies,  166  ff. 
Judge,  293  ff.;    296  ff.;    civil  and 

criminal  judge,    297;     j.'s  oath. 

298;    bench-court.  299;    means 

for  procuring  impartiality  in  j.. 

297  ff. 


INDEX 


481 


[The  numbers  refer  to  the  pages.] 


"Turisconsultus,"  83,  85. 

Turv,  305  ff.;  origin  of  j.,  311  ff. 

"Jus  gentium,"  96  note,  206.  329 

note. 
"Ju?  respondendi,"  86,  324. 
Justice,    101,    106,    170;     realized 

by   commerce,    173  ff.,    268  ff., 

273  ff.;   formal  and  material  j., 

274  ff.;  administration  of  j., 
275;  as  guarantee  of  law,  289 
ff.;  separation  of  administra- 
tion of  j.  frorh  executive  func- 
tion, 291  ff. ;  equality  in  j., 
276  ff.;  j.'3  household.  293  ff.; 
means  for  procuring  impar- 
tiality in  administration  of  j., 
297  ff. 

Justinian,  86  and  note  11,  214. 
Justinus,  259  note  46. 

Kant,    37,    38   and    note,    39   and 

note. 
Knies,  119  note  26. 

Labor.  341  ff. 

Lassalle,  F.,  318  note. 

Law,  32  ff..  45,  46,  49,  104,  176, 
178  ff.,  184  ff.;  two  elements  of  1.. 
186;  propulsive  coercion  in  1.. 
194  ff.;  231;  239  ff.;  inter- 
national 1..  242  ff.;  public  1., 
ibid.,  246  ff.;  1.  in  despotism, 
263  f . ;  subordination  of  authori- 
ties to  1.,  282  ff.;  material  I., 
293  ff.;  limit  of  subordination 
of  government  to  1.,  314  ff.; 
definition  of  1.,  324-325;  pur- 
pose of  1.,  325  ff.,  330;  society 
the  subject  of  the  purpose  of  1., 
345  ff.;  criminal  1.,  362  ff.; 
definition  of  content  of  1.,  380; 
pressure  of  1.  upon  the  individual, 
381  ff.;  L.  of  Nature.  44,  178, 
179,  200,  201,  399. 

Lease,  usufructuary  1.,  77,  121; 
ordinary  1.,  ibid. 

"Legis  actio,"  294. 

Leibnitz,  Iviii,  277. 

Levers  of  social  movement,  45,  71 
ff.,  73;  egoistic  1.,  73  ff.,  176  ff.; 
ethical  1.  73. 


Liebig,  414. 

Life,  concept  of,  6  ff. 

Livy,  138  note. 

Loan,  77.  98. 

Louis  XIV,  340,  416. 

Love,  46,  73. 

"Mancipatio,"  96  note,   125,  204, 

208,  209,  211,  213,  219. 
"Mandatum,"    42,    77,    206,    212. 

213  note  19. 
Masurius  Sabinus,  84  note. 
"Merces,"  82. 
Meyer,  Hugo,  369  note. 
Middleman,  business  of,  112  ff. 
Mill.  John  Stuart,  399,  403  ff. 
"Ministerium,"  82. 
Mommsen,  Th.,  156  note  44,  378 

notes  97  and  98,  379  note  102. 
Money,  91  ff.,  96  ff.,  97  ff.;    m. 

sole  object  of  credit,  122. 
Morality,  46,  423. 
"Munus,"  82. 

Nature,  25. 

"Negotiorum  gestio,"  42,  77. 

"Nexum,"  96  note.  125,  204,  205, 

211,  219. 
Norm,  186,  246  ff.;    three  stages 

in   development  of   n.,    254   ff.; 

unilaterally  binding  n.,  259  ff.; 

bilaterally  binding  n.,  267  ff. 

Obligation,  355  ff. 
"Operae  illiberales,"  77,  82. 
Ordinance,  260  f. 

Paganini,  118. 

Papinian.  418  note,  420  note. 

Pardon,  right  of,  319  ff. 

Parkman,  340  note  68. 

Parties,  political,  31. 

Partnership,  contract  of,  95;  p. 
as  the  simplest  form  of  associa- 
tion. 166  ff.;  p.  as  developing 
law.  186  ff.;  218  ff..  220  ff.;  p. 
distinguished  from  association. 
224  ff. 

Paulus.  12  note,  97. 

Performance,  real,  96  ff.,  98; 
liberal  real  p.,  207  ff. 


482 


INDEX 


[The  numbers  refer  to  the  pages 


Person.  194  ff. 

"Philanthropia,"  112  note. 

Plai:tus.  81  note  4. 

Plusvalent,  93. 

"Pollicitatio."  42.  215  and  note  25, 
216,  353. 

Polybius,  208  note  13. 

Pomponius,  258  note. 

"Pragmaticus,"  85. 

"Precarium,"  42,  77,  129. 

Preservation  of  life,  338. 

Procedure.  293  ff.,  295  flf. 

Promise.  198  flf.;    liberal  p..  211  ff. 

Property.  49,  55.  194  flf..  386  ff. 

"Proxeneta,"  112  note. 

"Proxeneticum."  112  note. 

Public  spirit.  164  flf. 

Puchta,  241  note. 

Punishment,  280  ff.;  characterizes 
criminal  law.  362  ff. 

Purchase.  77,  98. 

Purpose,  creator  of  the  entire  law, 
liv;  p.  and  cause.  1  ff.;  law  of 
p..  2.  9  ff.;  p.  in  man.  7  ff. 
relation  of  p.  to  action.  8  ff. 
concept  of  p.  in  animals,  19  ff. 
self-relation  in  p.,  21  ff.;  gen- 
eral p..  21  note;  individual  p.. 
ibid.;  objective  p..  ibid.;  sub- 
jective p..  ibid.;  coincidence  of 
p..  25  ff.;  organized  and  un- 
organized p.,  30  ff. ;  system  of 
human  p.,  43;  interest  and  p.. 
46. 

Reason,  principle  of  sufficient.  1 ; 
mechanical  r.,  2;  psychological, 
ibid. 

Rent,  98. 

Reproduction,  339. 

Republic,  187. 

Revolution,  235. 

Reward,  45,  51,  73  ff.,  96  ff.; 
vocation  the  organization  of  r., 
114  ff.;  ideal  r.,  136ff.,  143,  147; 
economic  r.,  136,  146  ff. ;  mixed 
r..  141  ff..  147;  ideal  external 
r.,  143;  ideal  internal  r..  ibid.; 
T.  as  a  lever  of  service  done  to 
the  State.  145.  146  ff..  231. 

Ricardo.  151  note. 


Right  and  duty.  49. 
Rousseau.  421  note. 

Salary,  98  ff..  141,  147,  I4S  ff. 

Schleiermacher,  289. 

Schopenhauer,  37  note,  38  note, 
40  note. 

Schrader,  182  note. 

Science,  30  ff. 

Self-assertion,  different  species  of, 
44  ff.;  egoistic  s..  44.  47  ff.; 
individual  s.,  ibid.;  physical  s., 
45,  47  ff. ;  economic  s.,  ibid.. 
48  ff.,  53;  juristic  s.,  ibid.,  56  ff.; 
socials.,  ibid.;  ethical  s.,  ibid.; 
purposes  of  egoistic  s.,  47  ff. 

Self-denial,  problem  of,  36;  inter- 
est in  s..  40;  s.  and  unselfish- 
ness. 42. 

Service,  98,  360. 

Servitude,  354. 

Snakespeare,  101. 

Sickel,  Wilhelm,  365  note. 

Slavery.  182  ff. 

Smith,  Adam.  151  note.  280. 

Social  life,  as  a  law  of  culture,  62 
ff.;  conditions  of  S.I..  325 ff.,  331 
ff. ;  variability  of  conditions  of 
s.  1..  332  ff.;  extra-legal  condi- 
tions of  s.  1..  337;  mixed-legal 
conditions  of  s.  1..  ibid.,  342  ff.; 
purely  legal  conditions  of  s.  1.. 
337,  343  ff. 

Social  mechanics,  71  ff.,  176  ff. 

Social  movement,  problem  of.  68 
ff. 

"Societas,"  96  note. 

Society.  45,  59  ff.;  concept  of  s., 
66  ff.;  s.  and  State.  68,  222; 
s.  the  subject  of  the  purpose  of 
law,  345  ff.,  348;  obligation  to 
s.,  355  ff.;  crimes  against  s.,  372 
ff.;  conditions  of  life  of  s.,  372 
ff. ;  solidarity  of  interests  of  s. 
'and  individual,  415  ff. 

Spinoza,  118. 

Stahl,  277  note  52. 

State,  32  ff.,  45,  50,  176,  178 
ff.,  222.  228  ff..  230  ff.;  S. 
force,  223  ff. ;  moral  power  of 
the  S.,  239,  348;    obligation  to 


INDEX 


483 


[The  numbers  refer  to  the  pages.] 


State — (continued) . 

S.,   355;    crimes  against  the  S. 

370  ff . ;   conditions  of  life  of  the 

S.,  370  i=f.;    benefits  of   the  S., 

409  fT. 
Statute,  260  f. 
Stephen,    James    Fitzjames,    404 

note. 
"Stipulatio,"  m  note,  211.  213. 
Stobbe,  209  note. 
Suetonius,"  387  note  106. 

Tacitus,  258  note,  340  note  67. 
Theodosius,  217,  282  note. 
Tornauw,    N.    von,    104    note    IS, 

209  note,  353  note  82. 
"Traditio,"  208. 
Trajan,  352  note  80. 
Trendelenburg,  liv. 
Twelve  Tables,  256  note,  335. 

Ulpian,  86  note  10. 
Unselfishness,    self-denial   and    u., 
42. 


"Usucapio,"  394. 
Usury,  103  note.  104. 

Valentinian,  217,  282  note. 

Valerius  Maximus,  138  note. 

"Vasarium,"  87. 

Vocation,  106  ff . ;  v.  as  the  organi- 
zation of  reward,  114  ff. ;  v. 
secures  necessary  talent,  117  ff. 

"Votum,"  42,  215,  216. 

Wages.  98.  140.  146  ff. 

Wagner.  Adolf,  389  note. 

Weber,  414. 

Wilda,  368  note. 

Will,  problem  of  in  the  living 
being.  3  ff.;  w.  in  the  animal. 
4  ff . ;  w.  in  man.  7  ff. ;  mechan- 
ism of  the  animal  w.,  19  ff.; 
realization  of  the  conditions  of 
existence  through  the  w.,  23. 

Work,  51;  organized  in  form  of 
vocation.  106  ff..  341  ff. 


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